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MARYLAND O RAttE BOOK ROOM 
UNIVIV LIBRARY. 



00 NOT CIRCULATE 



CONSTITUTIONAL CONVENTION COMMISSION . 

COMMISSION MEETING 

University of Maryland School of Law 
Baltimore, Maryland 

December 3, 1966 



COMMISSION MEETING 

University of Maryland School of Law 
Baltimore, Maryland 

December 19, 196 6 



VOLUME XI 



/GO/ 

90,7 

vd // 

roL to 



CONSTITUTIONAL CONVENTION COMMISSION 



WILLIAM PRESTON LANE, JR. 
Honorary Chairman 

H. VERNON ENEY 
Chairman 



ROBERT J. MARTINEAU 
Secretaiy 



E. DALE ADK1NS, JR. 

HARRY BARD 

CALHOUN BOND 

ELSBETH LEVY BOTHE 

FRANKLIN L. BURDETTE 

RICHARD W. CASE 

HAL C B. CLAGETT 

CHARLES DELLA 

MRS. MAURICE P. FREEDLANDER 

JAMES O'C. GENTRY 

JOHN R. HARGROVE 



STANFORD HOFF 
MARTIN D. JENKINS 
CLARENCE W. MILES 
EDWARD T. MILLER 
CHARLES MINDEL 
JOHN W. MITCHELL 
E. PHILLIP SAYRE 
ALFRED L. SCANLAN 
L. MERCER SMITH 
MELVIN J. SYKES 
FURMAN L. TEMPLETON 
WILLIAM C. WALSH 



• •••••• 



JOHN C. BROOKS 
Executive Director 



KALMAN R. HETTLEMAN 
Assistant to the Executive Director 

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William Prescott Allen (Resigned January 5_, 1966) 
Ernest N. Cory, Jr. (Resigned May 13 _, 1966) 
Walter R. Haile (Resigned December 20, 1966) 
William J. McWilliams (Resigned September 10 3 1965) 
Ridgely P. Melvin, Jr. (Resigned August 2, 1966) 
George L. Russell, Jr. (Resigned July 12 s 1966) 



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700 Mercantile Trust Building 
Baltimore, Maryland 21202 



CONSTITUTIONAL CONVENTION COMMISSION 
COMMITTEES 



COMMITTEE ON ELECTIVE FRANCHISE 
AND DECLARATION OF RIGHTS 

James O'C. Gentry, Chairman 
(appointed Chairman on 
July 12, 1966) 
Charles Delia 
Leah S. Freedlander 
John R. Hargrove 
(appointed on July 12, 1966) 
Stanford Hoff 
John W. Mitchell 
(appointed on November 9, 1966) 
Melvin J. Sykes 
(appointed on July 12, 1966) 
Lewis D. Asper, Reporter 



COMMITTEE ON THE EXECUTIVE 
DEPARTMENT 

E. Dale Adkins, Jr., Chairman 

Calhoun Bond 

Charles Mindel 

E. Phillip Sayre 

Furman L. Temple ton 

Garrett Pov.-er, Reporter 



Elsbeth Levy Bothe 
(served until June 6, 1966) 
Ernest N. Cory, Jr. 
(served until May 13, 1966) 



William Prescott Allen 

(served until January 5, 1966) 
Ernest N. Cory, Jr. 

(served until May 13, 1966) 
George L. Russell, Jr. 

(served as Chairman until 
July 12, 1966) 



COMMITTEE ON THE LEGISLATIVE 
DEPARTMENT 

Harry Bard, Chairman 

Charles Delia 

Edward T. Miller 

Charles Mindel 

Alfred L. Scanlan 

John H. Michener, Reporter 

(appointed on September 12, 1966) 



Martin D. Jenkins 
(served until June 6, 1966) 
William C. Walsh 
(served until June 6, 1966) 
Alexander Harvey, II 
(served as Reporter until 
September 12, 1966) 



COMMITTEE ON THE JUDICIARY 

DEPARTMENT 

Robert J. Martineau, Chairman 
(appointed Chairman on 
August 2, 1966) 
Elsbeth Levy Bothe 
John R. Hargrove 
(appointed on July 12, 1966) 
Clarence W. Miles 
Melvin J. Sykes 
(appointed on July 12, 1966) 
Lawrence F. Rodowsky, Reporter 



Richard W. Case 
(served until June 6, 1966) 
William J. McWilliams 
(served as Chairman until 

September 10, 1965) 
Ridgely P. Melvin, Jr. 
(served as Chairman from 

September 10, 1965 to 

August 2, 1966) 
George L. Russell, Jr. 
(served until July 12, 1966' 
E. Phillip Sayre 
(served until June 6, 1966) 
L. Mercer Smith 
(served until June 6, 1966 
William C. Walsh 
(served until June 6, 1966) 



COMMITTEE ON STATE FINANCE 
AND TAXATION 



COMMITTEE ON MISCELLANEOUS 
PROVISIONS 



Richard W. Case, Chairman 

Calhoun Bond 

Stanford Hoff 

Martin D. Jenkins 

L. Mercer Smith 

Stephen H. Sachs, Reporter 



Elsbeth Levy Bothe, Chairman 
Leah S. Freedlander 
James O'C. Gentry 
Furman L. Temple ton 
Lewis A. Noonberg, Reporter 
(appointed February 26, 1966) 



Harry Bard 

(served until June 6, 1966) 
Charles Mindel 
(served until June 6, 1966) 



COMMITTEE ON POLITICAL 
SUBDIVISIONS AND LOCAL 
LEGISLATION 

Hal C. B. Clagett, Chairman 
(appointed Chairman on 

December 2, 1965) 
Franklin L. Burdette 
Leah S. Freedlander 
Clarence W. Miles 
(served as Chairman until 

December 2, 1965) 
L. Mercer Smith 
John B. Howard, Reporter 
(appointed on May 12, 1966) 



William Prescott Allen 
(served until January 5,1966) 
Ernest N. Cory, Jr. 
(served until May 13, 1966) 
Walter R. Haile 
(served from July 12, 1966 

to December 20, 1966) 
Edward T. Miller 
(served until June 6, 1966) 
Frank A. DeCosta, Jr. 
(served as Reporter until 

February 22, 1966) 



COMMITTEE ON STYL E 

Franklin L. Burdette , Chairman 

E. Dale Adkins , Jr. 

Harry Bard 

Richard W. Case 

Martin D. Jenkins 

Margaret Kostritsky, Reporter 



E. Dale Adkins, Jr. 
(served until June 6, 1966) 
William Prescott Allen 
(served until January 5, 1966) 
Walter R. Haile 
(served from July 12, 1966 to 

December 20, 1966) 
William J. McWilliams 
(served until September 10, 1965) 
Ridgely P. Melvin, Jr. 
(served until August 2, 1966) 
Furman L. Templeton 
(served until June 6, 1966) 
John Martin Jones, Jr. 
(served as Reporter until 

February 23, 1966) 



Calhoun Bond 

(served until June 6, 19 66) 
Hal C. B. Clagett 
(served until June 6, 1966) 



COMMITTEE ON CONVENTION PROCEDURES 

Alfred L. Scanlan, Chairman 

Hal C. B. Clagett 

James O'C. Gentry 

Robert J. Martineau 

Edward T. Miller 

John W. Mitchell 

(appointed on November 9, 1966) 

E. Phillip Sayre 

Eugene Pitrof, Reporter 



Franklin L. Burdette 
(served until June 
Charles Delia 
(served until June 
Stanford Hoff 
(served until June 
Clarence W. Miles 
(served until June 
George L. Russell, 
(served until June 



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CONSTITUTIONAL CONVENTION COMMISSION 

Meeting of the Constitutional Convention 
Commission held on Saturday, December 3, 1966, at 10 
o'clock a.m., at Room C-311, University of Maryland, 
School of Law, Baltimore, Maryland. 



PRESENT: 



H. Vernon Eney, Esquire, 

Chairman of the Commission 
Honorable E. Dale Adkins , Jr., Member 
Dr . Harry Bard , Member 
Calhoun Bond, Esquire, Member 
Mrs. Elsbeth Levy Bothe, Member 
Dr. Franklin L. Eurdette, Member 
Ri.chard V7. Case, Esquire, Member 
Hal C. B. Clagett, Esquire, Member 
James 0' Conor Gentry, Esquire, Member 
Walter R. Haile, Esquire, Member 
John B. Howard, Esquire, Member 
Dr. Martin D. Jenkins, Member 
Robert J. M~rtineau, Esquire, Member 
Edward T. Miller, Esquire, Member 
Charles Mindel, Esquire, Member 
Mr. E. Phillip Sayre, Member 
Alfred L. Scanlan , Esquire, Member 
John R. Hargrove, Esquire, Member 
Dr. Fur man I. Temp let on, Member 



Reported by: 

A. A. Castiglione and 

C. J. Hunt and M c Wasserman 



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1 ALSO PRESENT: 

John C. Brooks, Esquire, Executive Director 

2 Dr. Clinton Ivan Wins low, Consultant 

Dr. John H. Michener, Research Assistant 

3 Kalman R. Hettleman, Staff Member 

William Noonberg, Reporter 
4 

5 

6 THE CHAIRMAN: May we come to order, please. 

7 The first item on the agenda, the report of the secretary. 

8 MR. MARTINEAU: I don't have any additional 
minutes . 

10 XHE CHAIRMAN: The minutes for the last 

H three msetings, I think it is, maybe four, have not 

^- 2 been prepared or circulated because we have been just 

13 too jammed to be able to go through the transcripts and 

14r tabulate the votes and so forth, in order to send you 

15 the minutes. We hope they will be circulated to you 

16 within the next ten days. 

17 The report of the Executive Director. 

18 John? 

19 MR, BROOKS: Only to say that by going over 

20 and reviewing the assignments each committee has, I think 

21 most committees have just about completed their assignments 



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1 There are just one or two items outstanding with about 

2 half the committees and the other hal f seem to have 

3 completed. Reviewing the assignment, there is -one 

4 thing we very much need from the committees at this point 

5 is a completed, up-dated final report with the commen 1 - 

6 tary you would propose being ^included in the final 

7 report of the Commission itself and we would like to get 

8 that in the next week, if we can, from each committee. 

9 MR, MARTINFAU: I'd like to ask a question. 

10 Is this, what you want, something like we had in our 

11 Fifth R.eport, only brought up to date? 

12 MR. ER00KS: That's right, written from 

13 the point of view of the Commission, rather than the 

14 committee itself. 

15 KH. MAPvTINF.AU : You want a proposed draft 

16 i of the Commission report? 

17 MR. BROOKS: That'? right. Thank you. 

18 THE CHAIRMAN: I have just a very few 

19 things to report to you, matters of information, some of 

20 which will have some bearing on the discussions this 

21 morning. 



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1 Since the last meeting, John Brooks and I 

2 have had conversations again with the Governor and 

3 some of his assistants discussing primarily the budgetary 

4 matters and trying to get his views on the question of 

5 election of delegates. I might add, as to that latter, 

6 that he is more and more concerned about it because he 

7 is receiving more and more comment indicating the people 

8 who are going to run for the position of delegate to the 

9 Convention. Some obviously qualify and some, at 

10 least in his opinion, obviously not. I V7ill discuss 

11 that in more detail when we discuss the report of the 

12 Commission. 

13 He has, however, with reference to the 

14 budget, insofar as he can do so, approved in principle 

15 the broad recommendations which we were making as to 

16 creating a staff and assistants to get the C it ion 
started off right, including the idea -- provided the 

- Legislature approves, and he thinks it will -- of sc 

^ sort of orientation session of a d'iy or two with the 

: newly elected delegates. He has indicated that he will 
pass these views along to Governor-Elect Agn , but in 



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the meantime, he has instructed the Budget Department to 
keep in mind lump sum appropriations to carry out these 
purposes. 

We have also met with Mr. Slicher and 
discussed in more detail with him these problems and at 
the moment he is contemplating providing, subject, of 
course, to the approval of Mr. Agnew, $750,000, in round 
figures, as a defSxiency in the current fiscal year to 
provide for the expense of the election next spring. This 
figure is only an estimate obtained from the Attorney 
General's office and we have got to get a little more 
accurate estimate, but the thought here is to carry out 
the Commission's recommendation that the expense of 
the election be borne by the state and not by the politic?.! 
subdivisions . 

With reference to the budget appropriation 
for the next fiscal y: ir, which would cover the Conven- 
tion and some sort of advertising or educational pre 
after the conclusion of the Convention to educate the 
public as to what is in the proposed new Constitution, 
we have upped the previous estimates based primarily on 



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Mr. Slicher's suggestions as to the cost of publication 




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that will probably be required of the draft of the 




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Constitution and related explanatory matter. 




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So that, at the moment, he's thinking in 




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terms of $1,200,000, not including the cost of the 




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special election to come along in '68. So that, at the 




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moment, and again all subject to the approval of the 




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incoming Governor, the appropriations contemplated would 




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be $750,000, in the current year, and $1,200,000, plus 




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$750,000 in the next fiscal year. 




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We have also scheduled a meeting with Mr. Agnew 




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this week, Tuecday, to discuss the same matters with 




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him and also hopefully at that time to outline to him in 




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a fair an-.ount of detail v?hat the general recou ' tions 




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of the Co ' sion are going to be and at that time I 




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would hope that we could be able to get from him a 




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clear indication of just what his views are going to 




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be with reference to the Convention, election, and so 




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forth. 




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We had hoped by this time to have had 




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conferences with sc i of the legislative leaders, so that 






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we could report to you on it, but this has been impossible 
to arrange. We do have a conference scheduled next 
week with Senator James and Mr. Marvin Mandel and, in 
the offing, but not yet scheduled as to date, conferences 
with Senator Harry Hughes and Ed Hall and with Glenn 
Beall and Dale Hess in the House. 

Now, these, of course, are the leaders of 
the previous Legislature and we have no idea at all as 
to whether they will be the leaders of the incoming 
Legislature. We don't know whether Bill James will be 
president of the Senate or not or Marvin Mandel speaker 
of the House or not. 

However, when we discussed this with the 
Governor, he suggested -- well, first of all, he said, 
too, that he did not know and refused tor^ake any pre- 
diction as to what the lea hip would be in the Legisla- 
ture, but suggested that it would be highly desirable for 
us to have these preliminary discussions with the previous 
leaders, so that they would ba familiar with what was 
being done and also, so that we could get their thinking 
c Lng on this j. ' a of 1 to elect delegates. 



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1 I might say that there has been apparently 

2 a great deal of conversation back and forth among members 

3 of the Legislature, both old members and newly elected 

4 members, on this question, anyhow. In any event, we 

5 are going ahead with these conferences with the leaders 

6 I have indicated. 

7 In addition, we discussed the question at 

8 some length with Senator Tydings. I hope to have a 

9 similar discussion with Senator Brewster and, at the 

10 suggestion of the people we have talked to, hope soon 

11 to have a discussion with the incoming Executive of 

12 Baltimore County, Dale Anderson. 

13 These discussions, I might say, are not 

14 at all to persuade the people we are talking to to any 

15 particular view. Indeed, one of the problems is that 

16 we are unable to do this. We can't say the Commission 

17 is definitely going to recommend this or that. The 
sole purpose is to make them alive to the problem, 
because what we do hope to do is to have a bill sponsored 
by this Commission introduced in the opening days of the 
Legislature and we would hope that it would be acted on 



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1 promptly and not be delayed until the closing days of 

2 the Legislature. 

3 Three other things I want to mention before 
4r we start in the consideration of the committee reports. 

5 One is, you will notice I did not include in the agenda 

6 a consideration of the last report of the Committee on 

7 Elective Franchise dealing with the preamble, and the 

8 reason we did not was it seemed to us that the 

9 Commission, individual members of the Commission, could 

10 get a much better feel for what they really wanted in 

11 the preamble if they had before them the complete text 

12 of the Constitution to the extent that we have drafted 

13 provisions for it at the present time. 

14 As I indicated at the last meeting, I had 

15 hoped to have this circulated to you before this meeting. 

16 V7e haven 1 1 been able to do it. I do have a complete 

17 copy, but ' mt to give it a check once more to make 
sure that we have picked up all of the changes that the 
Commission has thus far adopted. I would hope that in 

• the coming week we will send each Commission member a 
copy of this and, as heretofore indicated, we would li ; 



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each member to review it carefully for both the obvious 
and the not so obvious errors, but also for inconsistencies 
or mistakes that V7e may have made in failing to pick up 
correct ions made, and this is particularly important for 
the Chairmen of each committee to review their particular 
parts very carefully with the reporters, so that we can 
at least be sure that the draft that we are now circulating 
or will be circulating is accurate. 

To save us time, please don't delay this 
and then write letters. Get on the telephone, if you 
find any corrections, and dictate to John or to me 
or our secretaries whatever you have, so we can make the 
changes right away. 

As you know, we have had talks at great 
length throughout the course of the Commission meetings 
about the schedule to be attached, but we have nev 
really come to grips with it until the Committee on the 
Judiciary Dej lent attempted to work out a schedule 
with reference to their article. We were thinking that 
that committee might be sort of the guinea pig for the 
Commission in the schedule because, perhaps, there are 



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more difficult problems in connection with the schedule 
for the Judiciary Department article than with reference 
to the others. That committee had hoped it would be 
able to drtift a schedule. 

Their preliminary attempts to do so and 
the very full discussion of it indicated that there are 
major policy questions to be considered which made it 
simply impossible for them to do so as quickly as they 
had hoped. 

Our feeling about it, and when I say our, 
I mean the staff, now, is that the schedule can't very 
well be drafted until we have the whole discussion fairly 
well put together, because the kind of thing that you 
are thinking about here is, for instance, the date as 
of which the discussion or any particular part thereof 
shall take effect, and the effect of this on the terms 
of elected officers. 

To illustrate, if you | deferred the taking 
effect of the judiciary article until say January 1, 1971, 
you would not have to worry about special provisions with 
reference to the t of office of Clerks of the Court 



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1 and others, sheriffs and state's attorneys, and so forth, 

2 because their terms are just beginning in November , f 66, 

3 or December, '66, would have expired by that time. 

4 However, that is a major policy decision for 

5 the Commission, whether it would be politic to defer the 

6 effective date of the judiciary article from 1968 until 

7 the end of 1970. 

8 S5.milar decisions will have to be made 

9 with reference to other articles, particularly as to 

10 preserving the pension rights and salary rights of 

11 elected officers in every branch of the government. 

12 Accordingly, what we will try to do is to get the whole 

13 Constitution circulated to you and then the staff will 

14 try to get up some suggest ions as to a schedule and 

15 circulate that among the Commission members as the basis 

16 for our discur^ion. 

17 Only one other thing, I think, we need 
mention in connection with the schedule and that is 
that we have boon assuming, I think, many times in our 

• discussions that the schedule would be not only a 

l j irary thing, that would not continue to 1 ted 



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1 with the Constitution over the years, but also that it 

2 could be amended by the Legislature. Nov;, it's obvious 

3 that there will be some provisions in the schedule which 

4 will be of constitutional dignity and beyond the power 

5 of the Legislature to change and there will be some 

6 provisions which we would deliberately want the Legisla- 

7 ture to be able to change, so that the schedule will have 

8 both characters. 

9 Now, thirdly and finally, the next mseting, 

10 the next regularly scheduled meeting is Monday, December 

11 19. Since everyone has that date already on his 

12 calendar, we will not attempt to schedule a meeting 

13 at any other date, but would like you to reserve the 

14 ,; entire day, perhaps an evening session, also. We would 

15 like to try to schedule the group photograph at £ 

16 ; during that s session and since we are very, \ 

17 anxious that the photograph include every i 1 r of 

18 the Cor._-j.iss ion, we will, prior to the 19th, send a card 

19 or a letter around to ask you to indicate to us very 

20 promptly if there is any particular tine of that day in 

21 which it is absolutely ii . :'.bio for you to be present. 



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1 Let me ask you, however, to make every possible effort to 

2 be present throughout the entire ssession and then we 

3 will have a better chance of having the photograph with 

4 everyone present. 

5 Nov?, before v?e start with the consideration 

6 of the reports, is there any other announcement or 

7 matter of general interest anybody wants to mention? 

8 If not, we'll move right ahead then to a further 

9 consideration of the report on the Committee on Ccnven- 

10 tion Procedures. Mr. Scanlan? 

11 MR SCANLAN: As you will recall, in our 

12 Second Report, which was before the Commission a 

13 couple of months ago, we had an extended discussion and 

14 debate, I believe, or both, on the question of the manner 

15 of electing delegates. Our committee had unanimously 

16 ! recommended that the delegates be elected from the 

17 counties at large, in other words, the requ:' nt will 

18 be residence in the county and tl d ] . :: tes in that 

19 county would be elected by all the citizens of that 

20 county, with the exception of Baltimore City where the 

21 delegates would be elected from the traditional J gisl 



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1 districts of the City of Baltimore, and I don't want 
to go over the arguments on both sides, but our 
committee basically felt that: this was a better way, 

4 better calculated to secure a higher quality delegate. 

5 I If it's going to be a non-partisan election, 
hopefully, citizens groups, the League of Women Voters 
and leaders of both political parties might agree on the 
type of a slate that would bring to Annapolis the dele- 

• gates of the quality we would hope will go there and are 
needed, badly needed, if we are going to come up with 
truly fine C '.tut ion. 
12 There were good arguments on the other 

side, however. There was a concern expressed by a 
number who participated in the debate that especially 
in Baltimore County there was a good chance of a politi 

16 i "chine using all its resource: would be able to secure 

17 the election of a great majority, if not all the 

I 

18 dele- of a particular county and especially, as I 

19 say, Baltimore County. 

20 These arguments were expanded upon by both 

21 ! sides in that c 1 ' ite and I think the vote was a substanti 1 



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1 one in favor of the position of the committee. 

2 I think it uas around seventeen to six. 

3 Since that time, as the Chairman indicated 

4 in his opening remarks, and \;hich these letters I think 

5 you have before you indicate that there has bean consi 

6 able reaction to the tentative decision reached by the 

7 Commission and a number of people, either directly or 

8 indirectly, • have in effect asked the Commission to 

9 reconsider its position on this issue. 

10 At the last meeting of the Committee on 

11 Convention Procedures held several weeks ago after this 

12 storm had arisen, or at least since the storm had been 

13 detected, we reconsidered the matter again, and again it 

14 was the unanimous and firm opinion of the committee 

15 j that the recommendation we or \ ' ally made was the 

16 I best one. We all concede that perhaps no soluti is 

17 ; a happy one. My own personal feeling is that the 

18 who are so concerned about this situation in Baltimore 

19 County i [lect to take into account one important factor. 

20 This is a special election, a one-shot 

21 | affair, and all previous c: , ' :e, so far as we c 



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1 find out, in constitutional convention elections, for 

2 instance, the most recent one in Michigan, 19 per cent 
S of the electorate participated and my own feeling is 

4 tins that type of election, it's one where the do-gooders 

5 have the advantage. The saloon boys con't come out. 

6 They don't have the three hours off under the collective 

7 bargaining contract and the determined effort by civic 

8 minded groups could, I think, result in the election of 

9 a majority of high quality delegates. 

10 Sometimes, you know, in the democratic 

11 process you have to work and you have to fight and 

12 you have to try to win. For instance, if we go along 
15 vzith the proposal -- this is what some of the people in 

14 Baltimore County seem to favor, electing the delegates 

15 from districts, you are con< li g to the machine right 

16 off bee-" if they are afr " i achine can 

17 dominate a county, a fortiori, it can dominate a 

18 legislative district. So, you arc sacrificing immediately 

19 a good hunk of your delegates, under your own assumption. 

This is my personal feeling and I don't 

21 necessarily s Eor c Lt1 -e in making this particu] 

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point, but I certainly speak for the committee in saying 
it remains our firm and unanimous opinion we were right 
the first time. Maybe if we had the wisdom of ' foresight, 
we could see maybe we were in error, and we won't know 
until the elections are held, but that's the way the 
committee feels about it ; but I gather that others may 
feel differently. I know in the previous debate there 
were good arguments on the other side, but it's one of 
those things you just have to pay your money and take 
your choice, I think. We may have bet on the wrong 
horse here, but that's where our money is going to 
ricie . 

THE CHAIRMAN: Before we have further 
discussion, let ma report to the Commission the results 
of a number of conversations that I have had and Job 
Brooks have had end both of us hive had with vario 
groups . 

First off, I don't think there has been 
any recc. 'ation of the Commission that has been made 
that has produced the number of telephone calls that this 
1 is. It has been at t.' in such volume th« _. t Lnk 



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it's constant, maybe for two or three hours. It's just 
been one after the other. But, by and large, the calls 
are corning from, I would say, pretty much the same type 
of group. These are from people who have long been 
interested in government, such as members of the League 
of Women Voters who have very strong feelings on this 
and expressed them not just through one person, but through 
many persons. Also, other groups, young people, which 
just formed and organized in the last election and 
haven't any long political experience, but are very much 
interested in the whole subject of constitutional 
revision. Some of them are swinging way over to the 
other extreme. They want an entirely different district- 
ing, so that you would have no more than one delegate 
from any district. In other words, that the distribution 
be chopped c 1 x to the size of just o d legate. 



17 ' I would say that reaction in Baltimore City, 



and this is due to some misunderstanding of the previous 
recommendation of the Commission and some feeling that 
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1 delegates from Baltimore City, and when we pointed out 

2 that in the city, we had said election in the districts, >, 

3 it was less difficult, but still the feeling expressed, 

4 well, six, seven, or eight delegates from any one 

5 district is still too many. This means that if you have 

6 the kind of competition for the position that is antici- 
V pated, that you will have as many as 20 to 30 candidates 
8 in every district. That's just too many to inform the 

§ people about. 

As I indicated at the last meeting, we had 



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11 discussed the whole problem with the Governor and asked 
him to give some thought to it and then since the last 

13 meeting at a further conference with him, we discussed 

14 both this and the related problc;.: of what i ; or 

15 i -ithods or organization co uld be availed of to i: 

16 the election of the best possible persons and, wit! out 
IV giving you all the details, I think I can summarize his 

18 views about it as folic. 

19 First off, he is much concerned about the 
i tter, but doesn't profe:;s to have any sure-fire cure or 

21 suggest5.cn or method of curing the problem. He thi 



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1 and I think all of us feel, that this isn't a problem 

2 in the county which is going to have one delegate or 

3 perhaps two, relatively small counties. He feels that 

4 the people in the county, even without any great organiz- 

5 ing efforts, will sort of almost by unanimous consent 

6 agree that the outstanding person in that particular 

7 county is so and so and that he vjould be elected. 

8 He thinks there is a very, very serious 

9 problem in the counties V7ith the large number of dele- 

10 gates, but does not limit this concern to counties with 

11 as many as Baltimore County. He thinks, for instance, 

12 even in Montgomery County, with as many as sixteen, you 

13 have a very serious problem and a problem somewhat akin 

14 to Baltimore County, in that your dense centers of 

15 population are relatively fev7 in number but are highly 

1 6 cone e n t ra ted . 

17 I think --he certainly did not express 

18 any strong convictions as to the best way to insure tl 

19 election of delegates, but I think it's fair to say that 

20 he certainly feels that, on balance, there is a batter 

21 c ' ith '-' " it ict elections, He rec gnis all o: r 



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1 us do the difficulties, the other considerations and 

2 says quite frankly that it's certainly not a block and 

3 white proposition. 

As to the method of trying to secure the 

5 election, he made a number of suggestions, most of which 

6 are discarded, including things such as maybe we ought 
V to give consideration to some method of nomination, not 

8 by another election, but by a commission or committees 

9 officially appointed, perhaps selected by the Legislature, 
10 perhaps by combined acti.on of the Executive and the 

H Legislature; so: 2 method to try to reduce the total 

12 number of candidates in the general special election. 

13 He recognized, of course, that this would 

14 pose terrific problems, if you tried to get the 

15 Legislature to by a joint resolution name La state-wide 

16 or region or county nominating commission, yoi ' Duld 

17 have all sorts of problems, but he threw it out r 

IB as a reco: Jation, but merely as so tl Lng to think of 

15 to illustrate his thought that if you could work out 

20 sc - , ' L 'y to narrow do;; a the numbers, it would 1 

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Now, this is important because the indica- 
tions that we have gotten directly and also the 
indications we have gotten indirectly through conversa- 
tions with people, like the Governor is that there is a 
very strong likelihood that there will ve a very large 
number of candidates, a large number of highly qualified 
candidates, plus the indication that political groups 
and special interest groups will be getting up slates 
of candidates and whether they will be large numbers, I 
don't know, but the probability is that they will be 
not the kind of persons that onew^uld hope would be 
elected to the Convention, and this poses the proble 
that the largo number of highly qualified candidates -- 
you would scatter the votes, so that the probability of 
less qualified c dates with the backing of a concen- 
trated group would 1 a chance of e ' ig out with a 
plurality, at least, and be elected. 

This has been recognized by many groups and has 
r ' i in a trend which is g i ' g :ntun and which 
also disturbs us because we think it's too early, and 
this is an effort of civil groups to sort of be first in 



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1 the field and to form district-wide or county-wide 

2 organizations to back particular candidates. Some of you 

3 may have heard of one such group which star ted. in the 

4 past ten days, which was really a whirlwind effort, the 

5 phone rang all one morning, people called about this, a 

6 group called Civic. 

7 Many of the telephone calls indicated that 

8 this is a group sponsored by Dr. Eisenhower, President of 

9 Hopkins. That is a little bit of an exaggeration, I 

10 think. The sponsors of the group are two young men very 

11 much interested. One is Dr. Eisenhower's administrative 

12 assistant, Walt and the other is George Wills and their 

13 motive, at best, they are trying to get a group together 

14 that could solidify the efforts of all civil groups and 

15 get away from the problem of hs/ing a scattering of 

16 votes for the highly qualified people. 

i 

17 Part of the probl hich many of the psople 

18 : ~e suggested to us in this area is that if varic 

19 civil groups become interested, it's going to be awfully 

20 difficult to get them to unite and combine on a slate 

21 ' for any partial'-.:-: county. For instance, to \ ' ire 



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County again as an illustration, if you have the League 
of Women Voters active, the various civil clubs, the 
Lions, Rotary, Kiwanis, the Young Democrats, the Young 
Republicans; all of these groups, each one of them are 
goi.ng. to have numerous members who are going to be 
candidates and, for instance, we have had numerous 
members of the League of Women Voters tell us definitely 
th3y are going to be candidates . 

This means to get them to agree on a 
relatively small slate for any particular county is 
going to be awfully difficult. This is a problem of 
organization. 

I think that about covers, in general, 
the things v:e discussed, doesn't it, John? 

MR, ] X>KS: Yes. 

THE C '.<. Mr. Bond? 



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MR, BOND: Mr. Chairman, I was on tl 


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losing side of this bruising debate that Mr. Scan 1 


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talked about and I \70uld just like to make a couple of 


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Unfortunately , I do agree with the Chair 
that if the civic groups get in this, that it's goiur, 
to be very, very hard for them to coordinate and cooperate 

4: and the pros can chop them up and put their own people 
in, unless a miracle happens. 

C So, I'm really looking at it from afar. 

I feel that there is not too much we can do about this, 
except to provide, again, for district voting, because 
in this case, the political machines and I say all 
political machines have a place in our political life, 
but in my opinion, if you have district-wide voting, 
the political machines and the political organization 
13 can be tempered with the civic groups. 

I cannot agree with Al that you are going 
to have a great non-partisan special election with 
highly qualify :>ple : ing supported by the League 
and everybody else will fall in line. I think this is 
unrealistic, becau; i tl re's too much at stake in this. 

This Constitution affects thousands of 
jobs in the state government. It affects the judiciary 
and the judges tl. Ives, so: 2 judges have expressed to 



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1 me great concern about certain facets and the judges 

2 talk to the lawyers and the lawyers talk to the 

3 politicians and this thing, you just can't put it in a 

4 vacuum and say we are going to have great people and 

5 fine people going ahead with a great Constitution, and I 

6 hope it will be a great Constitution, but we can't live 

7 in a vacuum. 

8 Therefore, another comment I have is that 

9 I don't feel this affects Baltimore County alone. Of 

10 course, since Mr. Eney's talk, I see I have very good 

11 company, no far as the Governor agreeing. It isn't 

12 Baltimore County. Baltimore County is one I happen to 

13 bo familiar with, but it's all the urban areas. As I 

14 say, as long as this convention is going to have the 

15 issue before it that it's going to if fee ting the 

16 millions of dollars it's going to affect and the people 

17 it's going to affect, I don't feel we can do much more 

18 than try t T the no: ' : ion of delegates as close 

19 to the people as possible ana] I think that's by districts. 

20 i don't personally feel that a blue ribbon panel 

21 of r. Lng ' ' get through the Legisl 



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1 I may be wrong, but again I urge we reconsider on the 

2 district voting state-wide. 

3 THE CHAIRMAN: Mr. Delia? 

4 MR. DELIA: Mr. Chairman, I know this is 

5 quite a serious problem we are confronted with, but I 

6 think we have to recognize a couple of factors and one 

7 of them, I think, is the recent Supreme Court decision 

8 on the one man, one vote rule. I believe that the probl 

9 that we ran into in the past election have been solved 

10 to a great degree insofar as the selection of people 

11 running for public office and I think it would be also 

12 solved for people running for a position such as delegate 

13 to this Convention. 

14 It is my opinion and the opinion of our 

15 organization, as such, if you want to go that far, that 

16 we should continue this kind of procedure in the election 

I 

17 for delegates to the convention. We're of the opinion 
that you'll get a better selection of over-all candidates 
who will be selected by the people more so than by 
special groups or political organizations, as such, who 
will be tuned in with the needs of the state more so than 



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with the needs of any political group. It's been our 
experience over the years that the political machines 
have been loring their strength to a great degree and 
this will only give them an opportunity then to gain a 
good bit of their strength back if we would have at large 
elections. We feel that the state needs to be in the 
hands of the people, regardless of whether they use good 
judgment or not; this is the people's desire and the 
people's will. 

I believe that this committee here, because 
of the contact that they have in their representative 
areas could help the nominations of certain people by 
spreading around the kind of information that is going 
to be germane to the kind of people they think should be 
selected as delegates to the Convention. I believe that 
this group here could very easily submit certain names 
in their own communities or the counties where they live 
or subdivisions that could be encouraged to run and get 
the political leaders and other civic groups to support 
these kind of people. 

I might cay that our organization is 



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1 working with the different groups trying to get the 

2 right kind of people to run and support the right kind 

3 of people . 

4 I feel we're in a position right now that 

5 I think we have to recognize the change of climate in 

6 political affairs at least that have come over the last 

7 few years and that the only real concrete constructive 

8 move will be to follow along with the same procedure 

9 used in the last election, where people will be elected 

10 from the representative districts and the subdivisions 

11 in which they live. This way you are going to have 

12 the election made by the people in those areas. The 

13 selection of the people will be made by the people in 

14 those areas and not by soma group that is going to control 

15 the county or the state cld a whole. 

16 THE C : Dr. Templeton. 

17 DR. TEMPLETON: A question, Mr. Chairman. 
So far, the discussion has centered solely on Baltimore 
County. Has there been any flak received from any other 
regions or count 5~es throughout the state? 

THE ( ': Yes, but not to the extent 



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1 as Baltimore County or Baltimore City. I would say 

2 that has been the concentration. There has been some 

3 in the Washington area, Prince Georges and Montgomery. 

4 DR. TEMPLETON: Would it be against or 

5 for districting? 

6 THE CHAIRMAN: Well, I don't know — it's 

7 bothvays and I couldn't possibly tell you which way 

8 the preponderance is. I have this impress ion, and 

9 Al can correct me if I'm wrong, that the Montgomery 

10 County people, I would say that most of them appear to 

11 feel tfca t they would have a batter chance of controlling 

12 their situation county-wide. Nov?, whether this is 

13 really the preponderance, I don't know. This is a 

14 general feeling. 

15 MR. SCANLAN: I can give you a little 

16 i example of that. I think it's a strong feeling that we 

17 i have been gerrymandered and the results of tha recent 

18 election seems to bear that out. We have eight 

19 Republicans and eight Democrats in the western area. 

20 Potomac, Chevy Chase, Bethesda, and the rest of the 

21 upper county elected eight Republicans and, in the 



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process, soma outstanding Republican servants went down. 
Conversely, on the other side, in the concentrated area 
of Wheaton and Silver Spring, eight Republicans went down 
and this is the kind of situation we would be confronted 
with in Montgomery County, we think, if we had to elect 
our delegates to the Constitutional Convention. There 
might be some very attractive fellows over in Silver 
Spring that wouldn't have a chance if we couldn't put 
together a county-wide situation. Conversely, there 
would be some attractive people in Potomac you would 
like to have that wouldn't have a chance if the pattern 
of the last election was followed. 

So, I think in Montgomery, on balance, 
with people who really understand the situation and 
looked at it would favor the at-large business. 
Believe me, my views on this were formed before we had 
these result-", . 

; CHAIRMAN: I might add this c nt, 
if I can r iber how it was expressed to me, kind of 
humorously, indicating somewhat the contrary view to 
that. S 1 '.. ' ■ ) said, as T r 1 '-r it, Bethesda 



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1 and Chevy Chase think they have all the brains in their 

2 end of the county, but Silver Spring disagrees. This 
is a literal indication of a sour note to the Contrary. 

MR. SCAN1AN: Chevy Chase and Bethesda 

5 also hive a higher preponderance of the other end. 

6 MRo HARGROVE: We have been talking about 

7 control of the political machine, but has there been 

8 any discussion or has anything come to your attention 

9 in regard to the plain, simple unwieldiness of an at- 

10 large election, particularly in Baltimore County and 

11 the counties, for example, I think Dr. Wins low says in 

12 Baltimore County you would probably have 22 people to 

13 elect and, in an at-large election, this bee . at least 

14 from the experience in Baltimore City, becomes a 

15 rather difficult and c Inly chaotic type of election. 

16 THE C .MAN: Yes, we have had this coi 

17 This has been one of the very st ~ objections. People 

18 have said to us with reference to Baltimore County that 

19 if you have i rge, that means you are going to have 

20 at least 100 to 125 names on the ballot and maybe more, 

21 and this i_s an impossible situatio id those who 



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1 thought that the Commission hud recommended at-large for 

2 Baltimore City were throv/ing up their hands and saying, 

3 we 1 re going to have 200 names on the ballot. We just 

4 simply can't contend with it. 

5 Let me make this comment. I think it is 

6 very important for us to have this discussion now and 

7 be thinking about it and getting your ear to the ground, 

8 so to speak. I don't think it is necessary for us to 

9 take final action today on this question. We're going 
10 to have a meeting on the 19th, and that would be ti- 
ll enough to finalize the bill. One. reason that I do want 

12 it discussed today, however, is that, having so many 

13 people insisting to us that they want to organize to 

14 combat the recommendation of the Commission on district- 

15 wide elections and I have been trying to dissuade fch 

16 by saying C C ' i ' on ] s not yet made its i : , 1 

17 recoi d ton on the bill to go into the Legislatux 

rt of tl ' s . thing that I would lik 

to have d: -ion about is the problem of whether the 
Co ' " uld indicate any views as to how 
organizations should combine to effect the election of 



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popular delegates. This is a matter that is really snow- 
balling. We had a great number of organizations who 
indicated they have been moving in this direction. 
DR C BURDETTE: Mr. Chairman, I would 
like to invite, with your permission, Mr. Scanlan to 
give an estimate of a device that bears on this point, 
which turned up in Montgomery County with reference to 
the election of the School Board. I say this because 
I think Mr. Scanlan is a more active engager in political 
airs than I, as an observer .although a fellow resident 
of Montgomery County. Maybe the i bers of the Coi i 'ion 
are not ax-?are that in Montgomery County, with the only 
elective School Board in the state, that for the choice 
of four members this year a county convention was call 
under the auspices of a committee which has existed for 
sometime on public sclr i t arsons who ' 
interested in 1 ' endorsed by that group were asked to 

to ap- ; before it. 

The decision may have been in the 

Ltee, this I do not know, but in any event, it v 
ostensibly i ade by the presence of good many r ^s 



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1 who were invited to attend, in fact, there were several 

2 hundred persons. The group had four to — there were 

3 four places to be filled and the group endorsed four and 
4: they were all elected and my observation was v-7hcn you 

5 get doun to the brass tacks of it, they had no really 

6 great opposition. While there v;-as no opposition, except 

7 in the case of one of the four, it turned out to be quite 

8 the minority. 

9 The question I'm really raising, and 

10 perhaps Mr Scanli m will help ue , whether or not that 

11 V70uld help in some of the counties, if there would be 

12 a civic movement and people v^ould be asked to express 

13 their interest and those who wanted to be endorsed, it 

14 would in essence bee aunity experience. 

15 MR. SCA1 I remember the School ) 

16 election. They st ■'• that id from Colon;! Brooke Lee. 

17 | We had the .. tl " in the 1932 < ign. We I 1 a 
convention open tc all I ocrats . ' It's no surprii that 
the slate -seated Colonel 3 s's choices. Therefore, 
it was no surprise to me that tl e candidates of the 
School E My refl philosophy of t 



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1 people who called for the convention. That doesn't mean 

2 I'm opposed to the idea. I have an open mind on that. 

3 In fact, Senator-Elect Tom Anderson, to whom I've been 

4 speaking, he's very interested in this bill and aware of 

5 the importance of getting it through early and also 

6 troubled by this nominating problem, he threw that out 

7 when he said, couldn't we have sort of a county-wide 

8 informal convention, not provided for in the Enabling 

9 Act, but sponsored by the leading civic groups and both 

10 parties, and 1 said, 1 suppose we could. 

11 So, other people have thought of this. 

12 It's a possible device, if properly handled, but it 

13 also opens the charge of, you know, domination by a 
14- few do-gooder types, et cetera. 

15 THE (; Mr. 1 rtineau? 

16 MR. MARTINEAU: I think this syston has 

17 ! worked rather well in Anne Arundel County, wh re the 

18 volunteers for a charter I . n illy wound up controlling 
the county government by endorsing certain candidates 
and going out and backing those c did tes and 1 think 

is probably the one way that the so-call 



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1 can try to exercise some control. 

2 THE CHAIRMAN: I should have mentioned that 

3 there has been some indication that that same group 

4 might be interested in activating itself to have a slate 

5 of candidates or to support candidates here. Dr. Jenkins? 

6 DR. JENKINS: Mr. Chairman, what is the 

7 parliamentary situation? I was under the impression we 

8 were having a preliminary debate prior to a vote on 

9 reconsideration of something, and now I understand that 

10 this is just an informal discussion leading to another 

11 vote. I'm sure you are more frustrated than I or any other 

12 member of the Commission by the interminable but apparently 
15 necessary debate and discussion about every point. 

14 Knowing this Commission, I'm certain that if this is 

15 put over to the 19th, all of tl arguments will be 
15 re-presented in order to refresh our minds, although 

17 most of us are pretty certain of how we're going to 

18 vote on this particular issue. What is before the 

19 House? 

20 THE CHAIRMAN: Well, I did not mean to 

21 suggest in pointing out that it was not absolutely 



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necessary to take a vote on this day that we could not do 
so because, of course, we could. At some point which 
hasn't yet occurred, I anticipate there will be a motion 
to reconsider the action of the Commission in approving 
the recommendation of the Committee on Convention 
Procedures that the election of delegates be by districts 
in Baltimore City and by counties elsewhere. 

DR. JENKINS: I don't think that quite 
clarifies my thinking. At some point, not now, but 
later — 

THE CHAIRMAN: No one as yet has mr.de such 
a motion. 

DR. JENKINS: My feeling is we should 
go on and dispose of this and go back to trying to get 
some of these items in the die cuss ion. 

THE CHAIRMAN-; Well, Mr. Scanlan has 
indicated the Commission's point of view and he obviously 
does not intend to make such a motion. Does anyone move ■ 

DR. BARD: I would like to make such a 
motion, I had my hand up for soma time, but I don't know 
whether it's in order. At any rate, I'd like to spe 



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1 to the point . 

2 THE CRAIRMAN: The motion would be to 

3 reconsider the action the Commission had heretofore taken 

4 If it's seconded, it would be put before the Commission 

5 without debate. 

6 DR. BARD: I so move, but I did want to 

7 present one point of view that lias not yet been presented 

8 with reference to this question and if my motion keeps 

9 me from presenting that point of view -- 

10 THE CHAIRMAN: Your motion would, at this 

11 point. 

12 DR. BARD: All right, I will so move, any- 

13 way. 

14 THE CHAIRMAN: Is there a second? 

15 MR. CASE: Seconded. 

16 THE CHAIRMAN: Then the question crises 

17 on the motion to reconsider the action of the 

18 Commission in appi tg the reco d Jon of the 

19 committee that the election of delegates be by districts 

20 in Baltimore. City, but be county-wide outside Baltimore 

21 City. Under our procedure, the motion is not d e. 



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1 MRo MILLER: A parliamentary question. 

2 Are we voting to return the whole report for reconsidera- 

3 tion or is it merely the point as to whether delegates 

4 should be elected by district as was in the case of the 

5 last election or as recommended by the committee? If 

6 the issue is on that — 

7 THE CHAIRMAN: Just that narrow point 

8 at this moment. 

9 MR. MILLER: And the doctor's motion is 

10 not to reconsider opening up the whole field? 

11 THE CHAIRMANs No, sir, just that point. 

12 DR. BURDETTE: Mr. Chairman, I'm not sure 

13 whether this vote simply means it's a vote to consider 

14 reversing the action or further discussion. 

15 THE CHAIRMAN: The motion is not debatable. 

16 A vote aye is a vote to reconsider, which will open it 

17 up to further discussion. A vote no is a vote not to 
reconsider, which will end the discussion. Are you 
ready for the question? All those in favor, please signify 
by a show of hands. This is a vote to reconsider. 

MR. BROOKS: Fourteen. 



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1 THE CHAIRMAN: Contrary? 

2 MR. BROOKS: One. 

3 THE CHAIRMAN: The motion is carried fourteen 

4 to one. Now, Dr Bard, you wanted to comment. 

5 DR. BARD: I would like to offer one 

6 additional point that has not been stated so far. In 

7 addition to the fact that the ballot would be unwieldy, 

8 in addition to the fact that district voting would be 

9 more democratic, I would like to submit a point and first 

10 two questions that needn't be answered at the moment. 

11 Which counties were finally required to 

12 set up districts when reapportionment took place? That 

13 is the first question. I knew that Montgomery, Prince 

14 Georges, Baltimore, Anne Arundel, I think one or two 

15 others which were in debate, but at least those. 

16 j The second question. Have we not said 

17 that we do not desire rrore than six representatives in 
any one district? As I re: ' ;, our own legislative 
department on this, this is the position we held with a 
good deal of strength. 

Now, my point. There was a — two poJ nts . 
There wftre a good d il of (3 ' ibly 

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1 with regard to this whole point of view at the time of 

2 reapportionmsnt and after much debate the General Assembly 

3 decided that it was important to set up districting 

4 in the larger counties. This was debated for a long 

5 period of time, and my final point is that in all other 

6 respects, we have set up the concept of the Convention 

7 in terms of the practices that are now set forth as far 

8 as the General Assembly is concerned. 

9 By way of illustration, we are using the 

10 : me number of delegates as there are in tha House of 

11 Delegates and it just seem"; to me that if we are follow- 

12 ing this concept in all other respects, would our position 

this 

13 not be more defensible if we followed it in/respect as 

14 well? These are yet some additional points with 

15 reference to the importance of accepting districting 

16 for larger cour 

17 ! Ti I CI vIKMAN: Any further discussion? 
Mr. Gentry. 

MR. GENTRY: I have always favored the 
county-wide election system because, really, I felt th 
we'd get i . c ididates in that fashion, altl 



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1 it's been argued to the contrary here this morning, that 

2 by district election you might favor more qualified 

3 people because of the influence of the political machines 

4 and whatnot. Certainly, a limitation by district would 

5 also have an effect of limiting otherwise qualified 

6 candidates because of the lower number per district. 

7 As to the fears of the political machines, 

8 I think we're unduly apprehensive of that. Certainly, 

9 in the usual election, machines have operated through the 

10 use of money and I think we're all sophisticated enough 

11 that we know the type and source from which the money 

12 flows and I just don't see it in this particular election. 

13 I don't sec the money coming out to give the machines 

14 the wherewithal to operate. 

15 Possibly a compromise, which hasn't really 

16 been fully discussed as an alternative, \ Duld be 

i 
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17 residence in the county, election by the districts. 

Tl »uld give you t' Llity — 

MR SCANLAN: The other way around. 

MR. GENTRY: Ko, ] ' 'once in the county, 

election by th« dJi ^tricts, whicl rould i your full 



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slate of qualified -- or full possible qualified 
candidates could file and the election would be in the 
districts, which would stem the influence of the machine. 

MR. MILLER: Do I understand your thought 
is that, in a particular county, it would be similar 
to the British Parliament, that a person could be 
nominated that lived in one district, but the vote would 
be solely in another district in that county? 

DR. WINSLOW: Right. 

THE CHAIRMAN: Yes, I think that's the 
question. The same procedure, I take it, that we have 
adopted in the Article on Elective Franchise, I think 
it's elective franchise. Mr. Delia. 

MR, DELIA: Just two points I wanted to 
comment on, and I think there will be plenty of money 
flo ' g around in the coming Constitutional Convention 
election. I also believe that the people are more t rare 
today of what is going on than they are given credit 
for and I think if you just chock over the people voting 
on the question on t' 3 ballot, election by election, they 
are becoming concerned, more educated. 



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1 I think when it comes to the selection of 

2 people for delegates to the Convention, I think you are 

3 going to celect people based on quality and qualifications 

4 and ability, more so than people who have no means of 

5 meeting these qualifications. So, I'm not afraid of 

6 this kind of an election in a respective subdivision. 

7 THE CHAIRMAN: Mr. Haile? 

8 MR. HAJ1LE: I think in Baltimore County the 

9 i tjority view is that the election county-wide produces 

10 better men to serve and that is reflected in our position 

11 over the last decade, with reference to our County 

12 Council. I think also in most counties, if not all of 

13 them, all but one, perhaps, the local governing bodies 

14 are elected county-wide. 

15 Now, in Baltimore City, they are elected 

16 by district and our recommendation here is in Baltimore 

17 City the delegates likewise be elected by district, but 
1G in the counties, it still seems to be the majority 

19 view and I believe it to be in Baltimore County the 

20 majority view that an election county-wide is preferable 
to an election by districts. 



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THE CHAIRMAN: In Baltimore County they 
are elected county-wide, but their residence is limited 
to district residence, contrary to \7hat Mr. Gentry said. 

MR. HAILE: Yes. 

THE CHAIRMAN: Mr. Brooks? 

MR. BROOKS: I might mention one suggestion 
that was made, I think, by the League of Women Voters 
in Baltimore County was the possibility of considering 
a mixture of what has been discussed and that would be 
to elect one or two representatives per district and 
all the others county-wide, so there wo uld be a third 
to half or even two -thirds of the people elected county- 
wide or certainly a third. Tn Baltimore County the 
situation is there are seven districts, each of which 
has three representatives, except one which has four, 
and one proposal might be to elect two per district or 
the one that has four, three, and elect the other seven 
county -wide, to do this in any of the counties that 
have more than seven or eight candidates. 

THE CHAIRMAN: Mr". Scanlan. 

MR. PC : ', '. Is would only create raore 



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1 confusion. 

2 Number one, there is the complexity of 

3 it. Two, it's sort of placing some discrimination. 

4 You are placing the delegates on non-equal footing. 

5 Some of the delegates would have to run county-wide and 

6 the others have a relatively smaller area in which to 

7 campaign. Finally, after they are elected, human nature 

8 being what it is, those elected from the county at-large 

9 would so:iiehow get the idea they carry a more active 

10 mandate from the people. 

11 MR. BOND: I wonder if we could get an 

12 answer to Dr. Bard's question, which is how many 

13 counties have districts and how many representatives run? 

14 MR. BROOKS: I think there are only four. 

15 The statute requires any county with over a certain 

16 number of representatives is to subdivide them and elect 

17 them on a county-wide basis, and I think that number is 
eight. As far as I know, I think Anne Arundel is the 
smallest that qualifies. So, it's Prince Georges, Montgome 
Baltimore County and Ann2 Arundel. 

21 r ): Those are the four counties. 



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1 MR. BROOKS: Yes. 

2 THE CHAIRMAN: Mr. Martineau. 

3 MR. MARTINEAU: I wonder if we should limit 

4 ourselves to that. It seems to me we ought not think 

5 in terras of the way the Legislature has done it, but the 

6 problem seems to be Baltimore County and Baltimore City 

7 and I see no reason why we couldn't recommend that 

8 Baltimore City and Baltimore County follow a district 

9 basis and the rest of the counties be county-wide, 

10 if that would solve most of the objections to our proposal, 

11 I haven't been aware of any strong feeling in Anne 

12 Arundel, Prince Georges, or Montgomery Counties that 

13 districting is necessary, although we have gotten a lot 

14 of it from Baltimore County. 

15 THE CHAIRMAN: We have some from Anne 

16 Arundel, some of the seme types of groups. Mr. Scanlan? 

17 MR, SCA] LAN: Mr. Mnrtineau's suggestion 
is not a bad one and we could have some peripheral 
discussion of it. If it was the f ling of the full 
Commission that there should be some change to accommodate 
Balta >re County, I suggest the simplest way to do it 



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1 would be to provide language which would indicate that 

2 delegates would be elected from the counties at-large, 

3 except in those counties that were entitled to more than 

4 sixteen delegates, pursuant to chapter so and so of the 

5 Laws of Maryland of 1965, and the City of Baltimore. 

6 You have there, I think, a reasonable 

7 territorial classification and would put to rest any 

8 possible challenge that you were discriminating on the 

9 basis of representation of voters in one political section 

10 of the state as opposed to others. 

11 THE CHAIRMAN: Mr. Case? 

12 MR C CASE: Mr. Chairman, I have very 

13 mixed emotions about this. I think, it boils down in 

14 my mind as far as Baltimore County is concerned to 

15 almost a practical thing rather than a theoretical 

16 thing. I think you can get good people through both 

17 methods. The question really is, will you from either? 
Now, 1 agree with my good friend Walter Haile that in 
Baltimore County we have felt over the years that county- 
wide elections would probably bring, in the over-all, 
the better qualified people and this is manifested by the 



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1 method by which the County Council is elected, but it 

2 has to be remembered that the County Council is only 

3 seven, and what you are talking about here are - twenty-two. 
4: While selecting seven people from a slate, 

5 whether it be ten or fifteen or seven or seventy or 

6 one hundred, it is quite a different thing, I think, 

7 from selecting twenty-two people who are the best people 

8 and this leads me to question whether or not these two 

9 subjects that we were talking about before the motion 

10 was made aren't really more closely related than at first 

11 I certainly felt, and I think Dr. Jenkins must have felt 

12 which sponsored his statement, namely, if it were possible 

13 to devise some method which could reduce the number of 

14 people who are going on the machine, that is to say, if 

15 there were some way in which you could select or nominate 

16 people, then Iwould think that in BaltimoreCounty 
probably the best method would be the county-wide 

18 election. 

On the other hand, if we're go5.ng to have 
an everybody-can-file kind of deal, then it seems to 
me that probably, and again, as I say, from a pragmatic 



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1 standpoint, the probabilities are that the best way of 

2 handling it would be on a district basis. I don't know 

3 whether it's possible to suggest a way to nominate, but 

4 to me, having something like 150 people running at- large 

5 and everybody in the county going in and picking out 

6 22 of the 150, this is going to defeat the tiling, the 

7 very thing you are trying to achieve, in my judgment. 

8 On the other hand, if you've got a lesser number and 

9 they are defined and identified with, as somebody 

10 called them, the do-gooders, let's more charitably say 

11 the civic leaders, then I think you've got a chance to 

12 really do the job. 

13 I would suggest that perhaps some discussion 

14 ought to be made toward the question of whether or not, 

15 therefore, it is possible to devise a nominating proce~ 

16 dure before we have a final vote on this. 

17 I THE CHAIRMAN: Dr. Jenkins? 

DR. JENKINS: 1 think this Commission would 

make a mistake if it left out Baltimore County, whether 
we have this by district or by county-wide. I think 

21 perhaps we, by chance of appointment to this Commission, 



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1 we have more people here from Baltimore County than 

2 any of the other counties that might be affected. There- 

3 fore, they are more sensitive to the particular problems 

4 in that county. If the principle of districting is valid, 

5 and I happen to favor that, then it seems to me it's 

6 valid for all of the urban counties that are covered by 

7 districts. 

8 THE CHAIRMAN: Any further discussion? 

9 Mr. Bond? 

10 MR. BOND: I agree with Dr. Jenkins, it's 

11 the principle of districting, of getting the vote close 

12 to the people should be valid for all the counties 

13 affected. 

14 I am concerned by what Mr. Case said. 

15 I've been thinking about this matter of nominations 

16 and in some sort of weeding out procedure, and I must 
: confess off the top of my head reactions. One, that this 

could be the one thing that could bottle this bill up 
in the Legislature and cause more consternation and 
confusion and perhaps hold it up, on the battles as to 
how these nominating conventions would be constituted and 



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' implemented and it could hurt the whole idea of a 

2 Constitutional Convention by causing a lot of delay and 

;• argument in the Legislature. That's my first reaction. 

4 The second is, I feel if you think the 

5 thing through, of a nominating convention, again you've 
G got to go back to your interested segments of your 

population and your people and I think you are going to 
t have real problems in ever getting such a thing set up. 
* I wish Mr. Scanlan good luck, but I don't see how it 

10 can be done. 

11 THE CHAIRMAN: Dr. Burdette? 

12 DR. BURDETTE: Could I comment on this 

13 point, that the Montgomery County arrangement was not in 

14 essence a legal nominating convention. It was simply a 

15 group which got up a slate and anyone else could file 

16 v;ho pleased to do so, but considering the civic prominence 

17 of the convention and the way it was open to the large 
part of the citizenry, very few of us did file. 

MR. BOND: This could very well happen. 
DR. BURDETTE: There was no legislation. 
THE CFA'I f: Mr. Delia? 



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1 MR. DELIA: Mr. Chairman, on this particular 

2 point, I think, my gosh, we have an awful lot of smart 

3 people on this committee and I can't see the wisdom of 
4: trying to limit the amount of people who would want to 

5 file. We're talking about a democratic administration. 

6 I'm not talking about Democratic versus Republican. 

7 I'm talking about a democratic system. We're a free 

8 government . Everyone has a right under our constitution, 

9 should have the right to file for any position they want. 

it 

10 If we start to limit/ to caucusing or to how many people 

11 can run, you are just opening doors for a flood of 

12 cases in the courts. 

13 Now, I think, if we want to try to get 

14 this thing moving in the direction we want , the nominations 

15 to the convention should be free to anyone who desires 

16 to file. It's going to be up to the people, the 

17 organizations interested in these particular nominations, 

18 to try to get the best people to be nominated, so they 

19 will be the convention delegates; but I think if we 

20 try to limit the amount of people who can run and the 

21 method, we're going to run into serious problems with the 



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1 courts. 

2 DR TEMPLETON: Mr. Chairman, a few moments 

3 ago Mr. Scanlan informally put into language a -proposal 

4 that would maintain the county-wide basis with the excep- 

5 tion of Baltimore City and the four counties. Could 

6 not his committee easily frame that language on the 19th, 

7 and meet your agenda by voting on it on the 19th? 

8 THE CHAIRMAN: Let me make a suggestion I 

9 had in mind, a somewhat similar thought, but before I 

10 do, let me make a comment. 

11 I was one of the members of the Commission 

12 who voted the last time we acted on this in favor of the 

13 county-v75.de election and I confess that I still lean 

14 to it in theory. However, I have two oth«r thoughts. 

15 One, as expressed by Mr. Scanlan, there isn't any 

16 certain one and only solution to this problem and it's 

17 sort of exercise your best judgment and be done with it. 

18 I must confess, however, that since the 
last action of the Commission, the thing that has given 
me more concern is not the tremendous amount of reaction 

21 we have gotten as nearly so much the indicationof the large 



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number of candidates. I have said that on the basis of 
statements made to me, both directly and ind^ctly, as 
to the number of people that would file, I would not 
be at all surprised if we would end up with as many as a 
thousand candidates. 

Nov/, if this happens in any populous county, 
I think, as Mr. Case has indicated, you just simply have 
an impossible situation. It just simply would not be 
feasible to select out of a group of 120 or 125 or 150 
candidates. Maybe it's possible to work out a nominating 
procedure, maybe it's not. Maybe it's possible to work 
out a dividing line between the largest practical number 
that you can elect from any one district. I think it 
probably is . 

We have no motion before us at the moment and 
I was going to suggest, if anyone feels so incl5-ned, 
to move that th3 consensus of the Commission is that the 
election of delegates should not be on a county-wide 
basis in the more populous counties, but to refer back 
to the committee, with instructions to consider and 
report at the next meeting on two points. 



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1 One, whether it is possible to work out any 

2 kind of nominating procedure or any other device that 
: would reduce the number of names on the ballot and whether 

4 it's wise to do so, and secondly, if not, to recommend 

5 ! a breaking point at which you go from district to county- 

6 i wide elections. I don't think this should be just 

7 arbitrarily the four counties. Maybe there is a different 

8 breaking point. That 's merely a suggestion. 

9 MR. CASE: I'll make that motion. 

10 THE CHAIRMAN: Is there a second? 

11 DR. BARD: I second it. 

12 | THE CHAIRMAN: Mrs. Bothe? 

13 MRS, BOTHE: I don't want to re-open this 

14 issue necessarily, but in viev; of the large number of 

15 candidates there may be, I suggest that perhaps the 

16 committee might reconsider that they are not even going 

17 to be in alphabetical, order, when you have to select 

18 between a thousand odd names, if there are going to be 

19 that many. 

20 MR. SCANLAN: Still in there plugging. 

21 THE CHAIRMAN: Dr. Bard? 



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1 DR BARD: I would like to offer one 

2 suggestion and perhaps it doesn't conform with this 
5 motion, but it seems to me the committee may have a 

4 feeling that there are greater numbers who favor going 

5 along with the so-called compromise position which would 

6 be to make the exception for Baltimore County alone 

7 than I have. 

8 I have a feeling that this particular 

9 Commission believes that any principle that is set forth 

10 should be applied broadly rather than to one county alone 

11 and therefore I am suggesting that at some point before 

12 we close this total discussion, we might have sort of a 

13 unofficial feeling of the Commission in this one respect, 

14 so that we might guide the committee in its deliberation. 

15 THE CHAIRMAN: Well, to not confuse the 

16 issue, could we have that as a motion afterwards? 

17 DR C . BARD: Right. 

THE CHAIRMAN: Dr. Jenkins? 
DR. JENKINS: Mr. Chairman, I oppose this 

because I think we ought to make a decision now. I 
don't know whether I'm just feeling mean today or whether 



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I f d like to see this Commission get on and complete this 
job without many additional meetings. May I insert this 
parenthesis? Are we still on the three-minute,' speak 
only one time on the motion? If we're not, I would urge 
the Chairman to enforce this. 

THE CHAIRMAN: We should be and I have 
not enforced it. 

DR JENKINS: And it is almost 12 o'clock, 
and with this motion, it means another two -hour discussion 
later. I think it should be decided this morning and I 
oppose the motion. 

THE CHAIRMAN: Any further discussion? 
Mr. Sayre? 

MR.SAYRE: My personal feeling is that I 
don't want us to take any definite position on anything 
at today's meeting and even the expression which you 
sought for a consensus to be put in the form of a 
motion, I think might be premature. Anything that \ 
would recommend, I think, is goi'.ng to be subject to 
objection from somebody from some county and we're going 
to approach the Legislators to make changes and have n 



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I approaches and I wonder has there been any discussion 
by any of the leaders of the new Legislature as to what « 

THE CHAIRMAN: Who are they? We've had 
discussion with new members of the Legislature. 
; MRo SAYRE: Is there any way in which we 

could get some reading of what their feelings might be 
prior to our recommendation? 

THS CHAIRMAN: On any broad scale, I would 
say not. 
10 MR. SAYRE: I'm thinking here that if you 

II have the Commission even make the exception for 

12 certain populous areas to do it by district and that 

13 could be formulated later, would it be feasible for the 

14 Commission to do its own districting then, so it would 

15 be on the lines that they feci would be more in favor 

16 of good candidates and not be prejudicial to a political 

17 situation, such as gerrymandering? Is it possible for 
the committee to come up with something of that sort? 

THE CHAIRMAN: This is implicit in the 
motion. I think they would have the pov/er to do that. 
Mr. Scan Ian? 



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MR. SCANLAN: I just want to say one thing 
on this question of narrowing the number of candidates. 
Our committee did wrestle with this problem not once, 
but many times, and I guess I was in error in not mention- 
ing it. in ray opening remarks. V7e considered increasing 
the filing fee, we considered the possibility of two 
elections, a nominating election, but we're confronted 
with the time problem. Remember, this special election 
would be held in June. The filings would be closed for 
that in May. We hope the Legislature will pass this 
bill early in the session. There's no guarantee it will. 
It might pass it in the last days and there won't be 
time. The committee concluded there just wouldn't be 
time, houcver desirable it might be, and on that basis 
we rejected this alternative. 

THE CHAIRMAN: I think, Mr. Bond, as 
Dr. Jenkins observed, you talked twice -~ 

MR. BOND: I spoke only once on this 
motion. 

THE CHAIRMAN s My rule as only one — 

I \ BOND: I haven't spoken at all -- 



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follow me, so if it's all right to continue — 

MR. BOND: I will withdraw, but I haven't 
said a word, 

THE CHAIRMAN: Go ahead, let Mr. Bond speak, 

MR. BOND: Only one comment. I'm opposed 
to the motion. I agree with Dr. Jenkins, I don't think 
anyone is going to change his mind between district-wide 
and county-wide voting between now and next week. 

MRo CASE: I think if you could narrow the 
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THE CHAIRMAN: Mr. Sayre? 

MR. SAYRE: I think we have to have the pros 
and cons on all these points a little more succinctly 
marshalled and we might give more consideration to the 
idea of a convention in each County, or something, but 
here you have problems; will you have separate conventions 
for Republicans and Democrats or one big convention where 
all civic groups could be present, or where do you draw th^ 
line? Do you have civic associations, medical and dental, 
various organizations, and there is no limit where you can 
go and also, if you did have a convention, there ought to 
be some sort of rules that x^ould be submitted in advance, 
and X just think you have to have reasons why you would 
rule this out, so when we do make a recommendation, the 
legislature will consider it very favorably, in view of 
all the other data we have. 

THE CHAIRMAN: Mr. Case? 

MR. CASE: Mr. Chairman, I would like to ask 
the Chairman of this Committee a question. 

THE CHAIRMAN : Go ahead. 

MR. CASE: Mr. Scan Ian, did your Corrraittee at 



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1 any time discuss or debate the question of v;hether or not 

2 there should be any limitation of candidates? 

3 MR. SCANLAN: Yes. 

4 MR. CASE: And what conclusion did you come to? 

5 MR. SCANLAN: We concluded, however desirable 

6 that might be, there was really no practical way we could 

7 work it out, especially within the press of time that facec 

8 us, and secondly, I think soma of us felt that that par tic 

9 ular policy wasn't a good thing. It may be that democracy 

10 is a very poor form of government, but as Churchill said, 

11 it's still the best devised, and we felt in the special 

12 election where powers spring from the people, any attempts 

13 to really curtail people from the right for standing for 

14 the office would be — I think primarily it was a practica 

15 problem. There just wasn't time. 

16 MR. CASE: Another question. Do you think then, 

17 as Chairman of the Committee, there would be any useful 

18 purpose served by referring this matter back to your 

19 Committee with the idea that some new judgment or different 

20 judgment could be made in this area? 

21 MR. SCANLAN: Not on your first point. Tine 



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first assignment, V7as it possible to work out a nominating 

g procedure or some other device to limit the candidates. 

2 On that, I speak for the Committee, it would be useless to 

refer that back. 

The second referral, as I understand it, was if 

6 there was some break point we could put on the districts. 

7 I suppose we could reconsider that, but my own personal 

8 feeling is, with the possible exception of the compromise 

9 Mr. Martineau threw out for discussion here, there wouldn't: 

10 be much achieved there, either. 

11 MR. CASE: Mr. Chairman, that being the case, 

12 and I have great and high regard for the Chairman of the 

13 Committee, I would like to amend my motion. 

14 THE CHAIRMAN: Go ahead. 

15 MR. CASE: By striking out everything after, I 

16 hereby move, and stating in lieu thereof that the Commission 

17 go on record today as favoring district selection versus 

18 all county selection of delegates to the Constitutional 

19 Convention. 

20 THE CHAIRMAN: Dr. Bard, were you the one that 

21 seconded it? 



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1 MR. HAILE: I was the one that seconded it, but 

I would suggest that it is not exactly accurate. I thi.nk 

3 the Convention delegates should run by district only, in 

4 the same manner that the present House of Delegates has 

5 run and, therefore, they would be voting for something in 

6 its own image. 

7 MR. CASE: I accept that. That is what I meant. 

8 That is what I tried to say, rather inartfully. 

9 THE CHAIRMAN: You second it? 

10 MR. HAILE: I second it. 

11 THE CHAIRMAN: All right, as I understand it, 

12 the amended motion would be that the Commission recommend 

13 that the election of delegates to the Constitutional 

14 Convention be by districts, in the same manner as the 

15 election of delegates to the next House of Delegates. Mr, 

16 Sayre? 

17 MR. SAYRE: I move to table the motion, in view 
10 I feel it is premature. 

19 THE CHAIRMAN: Is there a second? No second. 

20 Any further discussion on the motion of Mr. Case? 

JUDGE ADKINS: I have a question. Do I unci erst 



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the motion to be that in those Counties which do not now 

2 have districting, districting would not thereby be recom- 

3 mended, as the result of his motion? 

4 THE CHAIRMAN: That is correct. Any further 

5 discussion? Are you ready for question? A vote aye is 

6 a vote in favor of the recommendation that the election 

7 of delegates to the Constitutional Convention by by 

8 districts, in the same manner as members of the next 

9 House of Delegates will be elected. A vote no would leave 

10 the present recommendation in effect. 

11 All those in favor of voting by districts raise 

12 your hands. Contrary? The motion is carried fifteen to 

13 four. 

14 Now, I would like, without getting into any 

15 great discussion, to have some expression of views because 

16 we are meeting this problem every day, as to this method 
IV of organization of groups to promote slates. Does anyone 

18 have any suggestion? Mr. Miller? 

19 MR. MILLER: I don't know whether this is a 

20 suggestion, Mr. Chairman, but my thought is wouldn't we 

21 be rather premature to make any recommendation, except off 



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the record, as people might, about political problems among 
ourselves, but wouldn't it be better off the record than 
to make any formal recommendation by this Commission, at 
least until the Enabling Act is passed by the General Assem 
bly? 

THE CHAIRMAN: I quite agree and I was not sugges 
ing this be a vote or any recommendation. The difficulty 
is that Mr. Brooks and I are having telephone calls every 
day saying that we are organizing this group, is this in 
accord with the Commission's thinking, are we doing what 
you like or do you dislike it. 

We're a little at a loss as to how to reply. 

MR. MILLER: If I may proceed, Mr. Chairman, my 
thought is, difficult though it is, it is something this 
Commission cannot control, anyway, and that for the time 
being, or even in the ultimate analysis, as I see it now, 
it will look rather bad if we recommend a Constitution and 
then are named as a group endorsing any group of candidates 
or any means of their selection; but leaving that out at 
the moment, wouldn't it answer the problem of the day, at 
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we know what the legislature is going to do, we don't 
know what to recommend? 

THE CHAIRMAN: Maybe. Mr. Case? 

MR. CASE: I disagree with the congressman. I 
think that this Commission, which has gained an amount of 
prestige throughout the State, ought to bring that prestige 
to bear through the press and otherwise to urge people to 
combine, just as you say this Hopkins group is doing. I 
think that is a very good idea, and I think we ought to 
urge in a press release, yes, I think a press release, witl 
the business about what we decide today, that people ought 
to combine to select, for the purpose of selecting the 
very best candidates possible to this Convention. 

Now, how they co:ab5.ne and what they do and how 
they make the selections of slates obviously should be left 
up to them and we shouldn't in any way attempt to dictate 
that, but I think that you've got to have leadership from 
some place. If the leadership doesn't come from this 
Commission, it is going to be like the fellow who got on 
his horse and rode off in all directions. You're just not: 
going to have any leadership, and that is exactly what is 



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going to happen, and I think it would be very appropriate 
for the Chairman of the Commission to say in effect that 
he thinks there ought to be cooperation with civic organi- 
zations and groups throughout the State to the end that the 
best possible group of candidates can be put forward for 
public consideration at the election and then let them 
take it from there and see what they do with it. 

THE CHAIRMAN: Mr. Clagett? 

MR. CLAGETT: What is the status of Judge Gray's 
Committee at the present time? 

THE CHAIRMAN: It is trying to get its final 
report in and disband it. It has disbanded, actually. It 
has its report finalized. 

MR. CLAGETT: Would there be any possibility of 
not permitting them to disband and let them be the central 
organization to which these groups can be referred and let 
them try to put it together?- 

THE CHAIRMAN: This was a thought I was going to 
ask for comment on and that is whether it would be desir- 
able to have that Committee or any other Citizens 1 
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point or steering committee for the other groups, and 

2 secondly, when we see Governor Elect Agnew, whether we 

3 should suggest this to him and have him recommend the 

4 committee. 

5 MR. CLAGETT: I would like to not make a motion 

6 THE CHAIRMAN: I don't think we need a motion. 

7 MR. CLAGETT: I say I would like not to make 

8 a motion and urge that point of view, and I would like to 

9 make another comment. I don't see too much difference in 

10 the views of Congressman Miller and Dick Case. I think 

11 it's merely one in detail. 

12 MR. CASE: In answer to that, let me say there 

13 is no difference between the congressman and me in this 

14 suggestion, because I think it would be wrong for this 

15 Committee to have a subcommittee or group of it to do 

16 this coordinating. I just think that that is wrong; to 

17 have this Committee control the apparatus by which 

18 candidates would be brought forward, which is going to be 

19 — it's bad. What I'm saying -- 

20 . MR. MILLER: It would be politically unwise. 

21 MR. CASE: Right. What I'm saying is that this 



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1 Commission should take the lead in stating that these 

2 groups ought to get together and perhaps you, Mr. Eney, 

3 or some other person or persons, Mr. Brooks or others, 

4 can be helpful in guiding this thing, but I think this 

5 ought to be a spontaneous thing from the citizens. 

6 MR. CLAGETT: Don't you have to guide it in a 

7 direction somewhere, and that where would be this overall 

8 statewide citizens group. 

9 MR. CASE: No, I don't think so. 

10 MR. CLAGETT: Because, as a very practical aspect 

11 of this thing and that is that John Brooks' office is 

12 getting deluged. and it's running out of time to get a lot 

13 of other work its got to do done. 

14 MR. BOND: Mr. Chairman, on this, I agree it 

15 would be great for this Commission to start up a group 

16 and pat it on the back, but I think it would be a great 

17 mistake to try to lead it as to. how these people would be 

18 selected. 

19 THE CHAIRMAN: Dr. Bard? 

20 DR. BARD: Mr. Chairman, I think we do have some 

21 kind of door which we might choose, and that is the 



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concept the election would be nonpartisan and, in this 
respect, the citizenry does need guidance because this 
isn f t a normal procedure in an area such as Baltimore. 
I think personally that the other committee, the Citizens 
Committee rather than this particular Commission ought to 
give guidance as to what is involved in a nonpartisanship 
election of this sort. 

It would seem to me the Committee might well 
set forth some broad principle and that is the hope that 
the best is free to run for the Convention and the civic 
and other groups give support to such candidates. 

THE CHAIRMAN: Mr. Martineau? 

MR. MARTINEAU: Mr. Chairman, I think I agree 
with everything Mr. Case has said, particularly about the 
point that you have to have a little leadership, but I 
think the leadership has to go not only to the election 
of delegates to the Convention, but also to the formation 
of the group which is to give the leadership for the 
election of delegates and I think, somehow, I think we've 
got enough here, enough imagination here to work it out, 
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we are unconnected with. 

Somewhere, officially or behind the scenes, make 
sure that such a statewide organization is developed. Ho; 
this is done 1 think can* be worked out in the future and 
I don't think we have to take any official position on it, 
but I don't think we ought to just sit back and hope that 
the civic leaders will form such an organization. I think 
we have to make sure that it is formed and I would hope, 
whether it's the staff or working in connection through 
Judge Gray's group or working with the Governor's office, 
that such a group is organized. 

I think it's got to be organized or, otherwise, 
the plan would be a complete flop. 

MR. CASE: Let me say I agree with Bob on this 
and it seems to me it could be done in the same way the 
group was organized to support the Niles Commission plan. 
Three or four people got together in Bill. Mar bury 1 s office: 
one afternoon and decided that's what they ought to do ahc. 
it spread out from there with different people. 

Now, I think you yourself could probably pick 
out one or two people who are civic minded in this 



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connection and get the ball rolling. Once you get this 
ball rolling, and with the kind of press coverage it's 
going to get, it will roll. It's just a question of kickiijg 
it off, but I don't think it ought to be Judge Gray's group 
because that is associated with this Commission. 

THE CHAIRMAN: Any further discussion? 

MR. SCANLAN: Also, I think the new governor 
should have the opportunity, if it is going to be a new 
Citizens' Committee, I think it unfair to perhaps saddle 
the new governor with the Gray Commission, unless he wanted 
it that way. I think he should be given the opportunity 
to express his views on the merits of such a Citizens' 
Committee, and how it is to be formed. Generally, I favor 
it, however. 

THE CHAIRi-M: Any further discussion? 

MR. BOND: I don't mean to belabor this, Mr. 
Chairman, but I do feel our primary responsibility -is to 
have a good Constitution in the hands of the Convention 
and we should — we all want good delegates, but we've 
got to get a good product in and, if we have a good product, 
we don't want to taint it by getting put too much in the 



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3 nominating arena. I think that is a thin line which has 
g to be watched, but which I have great confidence in the 
^ cha ir . 

4 THE CHAIRMAN: That seems to be the concensus, 

5 and if I can take a moment to summarize it, it seems to me 

6 it is a strong feeling the Commission ought not to be 

7 involved either in the election of delegates or the nomina- 

8 tions of candidates for the position of delegate or in the 

9 formation of groups to secure such nominations, but that 

10 the Commission ought to be interested in knowing that there 

11 is formed some sort of a group that would take over that 

12 function and that the less connection, official connection 

13 between that group and the legislature, the Executive 

14 Department of this Commission, the better. 

15 Secondly, the real need here seems to be for a 

16 Coordinating Committee because there apparently will not 

17 be a lack of civic-minded groups. The problem is trying 

18 to get their efforts coordinated and it might be that this 

19 could be best accomplished by a device Mr. Case selected, 

20 such as the formation of a Judicial Selective Council that 

21 had its group concentrated in a few people and then spread 



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1 out. I think this constitutes the thinking and we will 

2 move on to the next item of business. 

3 This will be the Sixth Report of the Committee 

4 on Miscellaneous Provisions. This is the report which you 

5 have had for several meetings, now, and it is dated October 

6 24, 1966. Now, we move to a consideration of the Sixth 

7 Report of the Committee on Miscellaneous Provisions. Mrs. 

8 Bothe? 

9 MRS. BOTHE: Mr. Chairman, Mr. Noonberg popped 

10 in here about twenty-f ive times, the last time expecting 

11 to come to our business at any moment and I believe it wen£ 

12 . all the way down to the preceding meeting at the Brown 

13 Estate, for lunch, and he is not here now,' but I think we 

14 can proceed with at least a good part of the Sixth Report 

15 without his assistance. 

16 THE 'CHAIRMAN: Let me interrupt a minute. Will 

17 he be here later? Would it help to move this up an hour? 

18 MRS. BOTHE: I think if we can get started, we 

19 will be able to dispose of it and the Sixth Report, with 

20 one exception, doesn't deal with very weighty matters. 

21 The Miscellaneous Provisions Committee is at 



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its usual, in recommending that certain provisions, most 
of which are obviously archaic or unnecessary, not be 
included in the new Constitution. The Sixth Report deals 
with, I believe it is six sections in the present Constitu 
tion, only one of which do we recommend retention. We 
will take them seriatim. Article I, Section 7, which ap- 
pears on Page 1 of the report, is a provision which pro- 
vides that if an elected or an appointed official refuses 
to take the oath as provided for in Article I, Section 6 - 
and you may recall that in the second or third meeting of 
the Commission, way back, the Commission adopted a recom- 
mended oath for the new Constitution. It makes provision 
for what happens if someone refuses or fails to take it 
and for what happens, if he does take it and then violates 

There are similar provisions in other constitu- 
tions, but the Committee's unanimous view is that it is 
really not necessary to place one in the new Constitution 
of Maryland. 

The matter has been judicially construed and 
it seems that even without a constitutional provision for 
office would be vacant in the absence -- if the individual 



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neglected or refused to take the oath. We feel it is 
superfluous and unnecessary to have this provision either 
in the Constitution or in the statutory law and we there- 
4. fore recommend its removal. ' 

Shall I move on or shall we — 

THE CHAIRMAN: We will follow the procedure 

7 and ask if anyone has a question or comment and, in the 

8 absence of a motion to the contrary, the recommendation of 

9 the Committee would be considered as having been approved. 

10 Are there any questions as to this particular provision? 

11 Any comments? 

12 I have one question and I don't know that it is 

13 answerable. Is there any indication as- to when the office 

14 becomes vacant in the- event of a failure to take the oath? 

15 MRS* B0TH.E: We're going to consider, I believe, 

16 a few sections down, a provision which does state manner 
17' of qualifying for office and we recommend its deletion 
1Q as well. So, I suppose the hiatus will be lengthened if 

19 we adopt that. No, there isn't, but I believe, without 

20 having read the cases cited here, that there is an implicit 

21 -- that if without having qualified within a reasonable 



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time, the office becomes vacant because — I'm sorry Lou 
is not here, but I understand one of these cases dealt 
with that. 

THE CHAIRMAN: I would suppose that if the term 
of office, the beginning of the term is fixed at a particu 
time, that that would be the time, but in so many instances 
the term of office isn't fixed, as, for instance, the 
Attorney General. 

MR. GENTRY: The Attorney General would not be 
an office created in this. Thinking back, every other 
office according to the terms of the Constitution would 
be fixed. 

THE CHAIRMAN: What we proposed. 

MR. GENTRY: What we proposed, that is. the date 
it would become effective, if He took the oath. 

MRS. BOTHE: Of course, this provision doesn't 
express when he should take the oath. So, the hiatus woulcl 
be present even if it were continued. 

MR. HARGROVE: Mr. Chairman, I'm having difficulty 
determining whether or not -- there are two provisions 
in this section. Is it correct that only in the event whe 



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there is a conviction would he be prohibited from holding 
office of profit or trust thereafter, is that correct, or 
does it apply where he refuses to take an oath or neglects 
to take an oath? 

THE CHAIRMAN: I assume it is the former, that 
is, that the last provision is on conviction of violating 
the oath. Is that correct? 

MRS. BOTHE: That is our construction of it. 

MR. HARGROVE: That is not very clear. Perhaps 
it could be made — 

MRS. BOTHE: I don't believe there has ever 
been a case involving. one who violated the oath after taking 
it, under this Constitution. 

MR. HARGROVE: You mean who has attempted to 
gain a similar office? 

MRS. BOTHE: I don't think the matter has been 
construed, there are no annotations. 

THE CHAIRMAN: I have a further concern about 
what I suppose is this same question, the last paragraph 
of your comment under this article, that it is the 

Committee's feeling* that the legislature could impose 



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this condition or would not this amount to prescribing 
another qualification for the office that is not the 
constitutional qualification and which would be beyond the 
power of the legislature? 

MRS. BOTHE: We look upon it as a mechanical 
feature to complete the act of taking office and not a 
qualification. 

THE CHAIRMAN: I don't mean the first question 
of qualification, but I mean the second, that any person 
violating the oath shall, on conviction, be thereafter 
incapable of holding any office of profit or trust. Your 
comment as to that, the last paragraph of your comment 
says,- it is the Committee 's .feeling that it is unnecessary 
to have that in the Constitution because that could be 
imposed by statute, and the question I raise is whether 
it could be imposed by statute or wouldn't such a statute 
be prescribing an additional qualification for constitution 
al office and, hence, be beyond the power of the legis- 
lature? 

MRS. BOTHE: VJell, constitutional office, I thinl< 
Mr. Chairman, you would be correct. As to holding any 



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other office or appointment, I believe there already are 
on the books prohibitions against certain people holding 
office after a conviction for crime or other offenses. 

THE CHAIRMAN: My only point is if it is deemed 
necessary to have the prohibition that one convicted of 
violating the oath of office could not thereafter hold any 
other office of profit and it is deemed necessary to have 
such a provision as to a constitutional office, isn't it 
necessary to have it in the Constitution? 

MRS. BOTHE: I would think yes, but, of course, 
we're reducing the number of constitutional offices to the 
point where it would hardly be of any practical effect, 
and I think this has to be taken in conjunction with. the 
fact that in all the years of the existence of this 
provision, it has never been operative. 

THE CHAIRMAN: Then the Committee's recommenda- 
tion is two- fold. One is to offices other than constitu- 
tional offices, it could be required by statute, and as 
to constitutional offices, you don't think it is necessary 

MRS. BOTHE: I think that way. Perhaps we 
better correct it to the extent that there is some conflict 



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with constitutional offices and in our comment — 

MR. SCANLAN: In other v;ords, if the legislature 
prescribed the penalties for violating the statutory oath 
of public officials, including the prohibition against 
holding public office of trust, and a man violated that 
oath and was convicted for that and thereafter stood for 
State Senator for his County and was elected, he would be 
qualified and you couldn't stop him because the constitu- 
tional qualifications would override the statutory pro- 
hibition that the legislature proposed; isn't that true? 
MRS. BOTHE: Apparently, that is true. 
. THE CHAIRMAN: Any further comments? Let us 
move on to Article III, Section 50. . 

MRS. BOTHE: Article III, Section 50, I think 
perhaps I best read. It says that the General Assembly 
of Maryland shall have the power to provide by suitable 
general enactment for the suspension of sentence by the 
Court in criminal cases; for any form of the indeterminate 
sentence in criminal cases, and for the release upon 
parole in whatever manner the General Assembly may prescrib 
of convicts imprisoned under sentence for crimes. 



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MR. HETTLEMAN: You skipped one. 

MRS. BOTHE: You're quite right. I don't think 
I need to read Section 50, of Article III, the effect of 
which provision is to require the legislature to make it a 
crime to bribe or attempt to bribe a public official or for 
a public official to receive a bribe. We had little 
difficulty in deciding that this was a matter to be treated 
by statute, and already Article XXVII, Section 23 would 
cover the situation. 

THE CHAIRMAN: Any question or comment? The 
same comment would apply as to this section, I take it, 
namely as to a constitutional office, it would probably 
not be possible for the legislature to say the conviction 
of bribery would disqualify one from holding office? 

MRS. BOTHE: Mr. Eney, before you raised the . 
question of whether it would be possible by statute to 
preclude a person from holding office of profit or trust 
under the Constitution, by statute, whether that would be 
possible •*- 

THE CHAIRMAN: Upon conviction of either vio- 
lating his oath or upon conviction of taking or receiving 



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a bribe. 

MR. NOONBERG: I would think the legislature 
could do it by statute, even though it is a constitutional 

4 office, and v;hat I think about is a conversation I had 

5 yesterday with Bob Murphy about the Ober Bill and the Court 

6 of Appeals of Maryland decision in Shell vs Simpson where 

7 the Court feels that the legislature can prescribe certain 

8 additional qualifications to protect the integrity of 

9 various offices, even though the office may be a constitu- 

10 tional office, although it may not prescribe additional 

11 oath, because of Article XXXVII, They can prescribe the 

12 requirement to take additional affidavits, which the Court 

13 of Appeals of Maryland indicated and Bob Murphy, as Attorne 

14 General, feels that although this is an affidavit and it is 

15 an additional qualification, it is not an additional oath 

16 of office as contemplated by Article XXXVII in the Declara- 

17 tion of Rights. 

18 THE CHAIRMAN: I can follow that, but it doesn't 

19 seem to me to quite answer the question we are concerned 

20 with here, but a rather different situation. It seems 

21 to me the question here is that if John Doe who holds the 



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1 office of Governor — let's say holds the office of 

2 Treasurer, still thinking of this as a constitutional 
5 office for the moment, is convicted of bribery or convictec 

4 of violating his oath as Treasurer; can the legislature 

5 provide that that conviction shall prevent him from there- 

6 after occupying the office of Governor? 

7 It seems to me that to do so in the case of a 

8 constitutional office is providing an additional quali- 

9 ficat5.on not set out in the Constitution. 

10 MRS. BOTHE: Perhaps Judge Adkins might have 

11 some comment on that, since this would be within the 

12 Governor's prerogative to select who he pleased, barring 

13 statutory -- 

14 JUDGE ADKINS: No, I have no comments. To tell 

15 you the honest truth, I was reading something else here. . 

16 MR. CIAGETT: I have a question. What would 

IV be the effect of a Governor's pardon after the legislature 

18 had enacted such a statute? VJouldn't that remove this 

19 qualification? 

20 MRS. BOTHE: You mean first pardon the man and 

21 then appoint him? 



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MR. BROOKS: I know of no constitutional author- 
ity. I think this is an inherent power of the legislature 
Whether or not there are some limitations in the constitu- 
tion or not, I think they can add on to those any time they 
like . 

THE CHAIRMAN: You mean the legislature could 
impose qualifications in addition to the constitutional 
qualifications? 

MR. BROOKS: Yes, sir. 

THE CHAIRMAN: I question that. Dr. Michener? 

DR. MICHENER: This wouldn't necessarily be a 
problem. Of course, the legislature would be allowed to 
remove an individual, and this is not a double jeopardy 
provision, to remove him from office and he is still liable 
to conviction. I imagine an impeachment proceeding would 
not be subject to the .Governor's pardon. 

MR. BROOKS: It is explicitly not, in the pro- 
cedure on impeachment. 

MR. SCANLAN: I suppose the problem is largely 
eliminated by practical considerations. Governors don't 
usually appoint people who have been convicted of bribery 



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, If the situation arises where someone convicted of bribery 

o is elected by the people, and there the practicalities 

dictate that the people's choice stands, except perhaps in 
Georgia, V7here Mr. Bond is not permitted to take a seat. 
DR. BURDETTE: Senator Lang was convicted but 
- exonerated by a higher Court. That leaves the question 

„ would such a reversal by the higher Court annul — 

THE CHAIRMAN: The conviction wouldn't stand. 
9 Mr. Gentry? 

10 MR. GENTRY: I note we have provided in the 

13_ legislative article, Section 13, which reads that each 

12 house shall be the final judge of the qualifications and 

■,2 election of its members as prescribed by the Constitution 

-,4 and the laws of the State, which would" seem, at least as 

,c to the legislature, there can be laws provided for the 

lg qualification of office. 

THK CHAIRMAN: Mr. Miller? 
18 MR. MILLER: Haven't we provided in another 

■•a section or tentatively approved a provision that the 

legislature should pass laws affecting the eligibility of 
21 people to vote and many of these offices are only open to 



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voters, and it would seem to me it would be implied that 
they can do the same thing with regard to whether a 
convicted criminal could vote or whether he could hold 
office. 

THE CHAIRMAN: Any further comment? All right, 
Article III, Section 60. 

MRS. BOTHE: I read that prematurely and I won't 
read it again. Article III, Section 60 was enacted in 
1915, when a great deal of conflict in constitutional 
thinking existed as to what the powers of the General 
Assembly were with regard to the areas covered, that is, 
suspension of sentence, imposing indeterminate sentences, 
that is, a sentence without any minimum or maximum limits 
and for providing for release on parole. 

It was apparently .felt at that time, when there 
was very little use of any of these three prerogatives, 
that there might be some conflict with the executive in 
•the event that there were no constitutional provision alio* 
ing the legislature to pass laws -- or a conflict with the 
judiciary and the executive *■- if there were no provision 
allowing the legislature to pass laws allowing the courts 



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and the executive agencies to grant parole and to suspend 
sentences and permitting laws such as we do have in 
Maryland, Article 3lB, the Defective Delinquent Act, is 
an indeterminate sentence law, that these could not exist 
without constitutional sanction. 

The thinking has changed considerably since. A 
number of States have no such provision and still, I think, 
all fifty States have provisions for a suspension of 
sentence or for parole. This is almost a universally or 
is a universally accepted means of handling criminal cases 
in all States, without constitutional sanction in many 
instances . 

The Committee had very little difficulty in 
determining that Sections A and C, the ones dealing with 
suspension of sentence and with release upon parole, were 
not needed in the new Constitution. Vie had a lot more 



difficulty with B, regarding the indeterminate sentence 
in criminal cases. The reason for this is that the Maryla 
Defective Delinquent Act, I believe, is the only truly 
indeterminate sentence law in the country. There are 
laws labeled indeterminate sentences — California has 



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what they call an indeterminate sentence, but actually 




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there is a maximum time which the defendant may be required 




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to serve undsr such sentence and, while a number of States 




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are considering indeterminate sentence laws, Maryland 




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retains the only one that actually is one. 




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In addition, the State of Florida has a constitu- 




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tional provision prohibiting indeterminate sentences. 




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Whether the new Constitution still contains it, we don't 




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know, but the matter is apparently of constitutional 




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dimension. 




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When Article 31B was on the drafting boards and 




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many of the best legal-psychiatric minds of the State were 




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engaged in the drafting of the bill, it was felt that no 




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constitutional sanction is needed. Research Report No. 29, 




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which was the document underlying the act, which Professor 




16 


Broderick of the Law School prepared, and he is Professor 




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of constitutional law, specifically states that there was 




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no need to have, a constitutional backing for the passage ■ 




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of an indeterminate sentence law. 




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However, the Court of Appeals and the Research 




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provision and have said it wasn't necessary, but since 
it is here, it put any doubts to rest of the constitution- 
ality of such a law. 
4 The Committee, of course, has no notion of 

recommending any action which would place Article 3lB in 
jeopardy of constitutional attack by recommending the 
deletion of the entire area of Section 60, Article III. 
We checked with Frank Kaufman, now Judge Kaufman, who was 
Chairman of the State Bar Committee dealing with criminal 
laws at the time, and he was also on a committee which was 
studying the possible revision of the Defective Delinquent 
Act, and Judge Kaufman felt that the provision was unneces 

13 sary. I believe his letter is attached as an appendix to 

14 the report. 

15 We also contacted Professor Francis Allen at 

16 the University of Chicago Law School who is an expert in 

17 the area of constitutional law, and the indeterminate 

18 sentence, and his response -- he assisted in the drafting 

19 of the Michigan Constitution in this area, I believe 
SO and his response, stating that he. felt the provision 

23- unnecessary is also attached to the report. We took note. 



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as well, of some cases decided by the Court of Appeals 
holding that the State had the right to detain a dangerous 
offender for the health and safety of the people, and these 
cases were not founded on any State constitutional provi- 
sion. 

After taking all these precautions, we came to 
the conclusion that the deletion of the entire section, 
including the indeterminate sentence part, would not 
jeopardize Article 31B, that the balance of the provision 
was no longer a constitutional necessity, so that we 
recommend that subject matter not be included in the new 
Constitution. 

THE CHAIRMAN? Any questions? Mr. Scan Ian? 

MR. SCANLAN: I'm a little .confused. I under- 
stand that as to A and C, the major concern was that the 
separation of powers doctrine in the old days led a few 
Courts to say the legislature couldn't do this. When you 
come to B, the indeterminate sentence, are- you saying that 
there was some concern and might be beyond the legislative 
power, unless it is specifically mentioned, that that is the-: 
better thinking authorities don't think it is necessary? 



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I always thought that the major opposition to the indetermi- 
nate sentence law was based on the constitutional objectior. 

3 of due process rather than separation of powers. Is that 

4 not correct? 

5 MRS. BOTHE: Yes, there is a major case just 
g decided out of Prince Georges County where for three weeks 

7 the subject of due process under the Defective Delinquent 

8 Act was under discussion and decision. However, I said 
g that for A and C, more than for Bo 

10 MR» SCANLAN: If that is true, if it is true 

11 there may still be some question about due process, whether 

12 we put it in the Constitution or put it in the statute, 

13 it wouldn't make any difference, if it was beyond the 

14 legislative -- 

15 MRS. BOTilE:. No. The constitutional issues of 

16 • the Defective Delinquent Act, which is very much -- you 

17 pick up a copy of the Atlantic Reporter and there are 

18 invariably six or seven applications from inmates of 

19 Patuxent questioning the constitutionality of the law, 

20 but not as to the power of the legislature to have enacted 

21 an indeterminate sentence law, but merely, as to the due 



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process compliance that exists when such a law happens. 

Of course, an indeterminate sentence law is some- 
thing of a departure from standard legislation, because 
traditionally the legislature says that a pick-pocketing 
shall be an offense and the minimum penalty would be six 
months and the maximum two years . When they say that bein 
a defective delinquent will subject you to an indeterminate 
sentence, this is quite a departure from traditional legis- 
lating and, for that reason, we had great hesitancy in not 
leaving the constitutional authority to do it in the books, 
but it seems quite unnecessary. 

THE CHAIRMAN: Any further question or comment? 
Mr. Sayre? 

MR. SAYRE: I stand to be corrected, so it's 
really seeking information. Under the rule making power 
section of the judiciary article, would it not be under- 
stood that the Court by rule would have the power on in- 
determinate sentencing to suspend, or whatever, if not 
provided by lax-j through the General Assembly? 

MRS. BOTHE: Of course, I don't know that this 
would have any effect on our discussion, but I don't 



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believe the Courts rule making powers would be the source 
of suspending sentences or parole, but that it would be 
essentially either legislative or within the inherent power 
of the Court. 

MR. SAYPvE: This does not enter into the practice 
and procedure -- 

THE CHAIRMAN: I don't think so. I think the 
rule making power might extend to procedures to be followec. 
by the Court in suspending a sentence, but not as to the 
powers of the Court. 

MR. SAYRE: So, this would.be a legislative matter 
altogether? 

MRS. BOTHE: ' And also would rest within the 
inherent power of the Court to some degree to suspend 
sentences or grant parole, but this isn't in an area that 
would be affected by the deletion or retention of this 
section. 

THE CHAIRMAN: Mr. Martineau? . . 
•MR. MARTINEAU: I think the Committee ought to 
be commended on its choice of consultants from the academi 
community. 



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THE CHAIRMAN: Any further questions? If not, 
we move on to Article VII, Section 2, on Page 7. 

MRS. BOTHE: Article VII, Section 2, deals V7ith 
the office of surveyor which is presently a constitutional 

5 office. I suppose and presume that there is little questidi 

6 but that office, where it exists and how it exists, should 

7 be a matter of statute and not of constitution. We have 

8 taken a few slightly more important offices out of the 

9 Constitution and we propose that this follow suit. 

10 THE CHAIRMAN: Any questions? 

11 MRS. BOTHE: I might conment because of the many 

12 delays in cur reports, we have had our work cut out and 

13 done for us by the voters, as far as the land commissioner 

14 is concerned. We spent many hours debating him and then 

15 the voters took care of. it. 
•16 THE CHAIRMAN: just so the record will be clear, 

17 the voters took care of it by adopting the constitutional 

18 amendment at the last election which abolished the office. 

19 Article XV, Section 1. 

20 MRS. BOTHE: Article XV, Section 1 provides that 

21 an office holder, and I. am summarizing it, whose compensatio 






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1 is derived from fees shall keep an account and make a 

2 report to the Comptroller, and pay over the excess of any 

3 fees over the salary of the Treasurer and generally provide 

4 for the bookkeeping of various State officers who have 

5 occasion to collect monies, such as trial magistrates in 

6 the County. It also puts a maximum of $3,000 on their 

7 respective salaries. 

8 This provision is very obviously archaic, derivir 

9 from a time when there were a great many such people and 

10 the amounts of money which they dealt with may have had 

11 constitutional significance. Again, we recommend that it 

12 be relegated to statutory or maybe even administrative 

13 status. 

14 THE CHAIRMAN: Any question? Article XV, Sectio: 

15 6. 

16 MRS. BOTHE: Nov? we come to a more substantial 

17 question, regarding the right of trial by jury in civil 

18 proceedings. The section as it now exists, and I will 

19 read it, since it is short, says,. the right of trial by 

20 jury of. all issues of fact in civil proceedings, in the 

21 several Courts of Law of this State, where the amount 






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in controversy exceeds the sum of $5, shall be inviolably 

2 preserved. 

We have already, of course, had discussion on 

4 the proposed new Declaration of Rights. That committee dicjl 

5 not deal with the question of jury trial in civil cases, 

6 although Articles V and XXIII of the Declaration of Rights 

7 do contain provisions relating to that issue. The diffi- 

8 culty is, it seems, that this provision has been in the 

9 Maryland Constitution since its beginning, in one form or 

10 another. It is in, I believe, all the other Constitutions 

11 of all the other States. Some of them have a dollar mini- 

12 mum, as we do. Many of them have none. 

13 This report, I might say, has been revised, 

14 again as the result of the passage of time. Ue changed 

15 the personnel of our Committee,' which at one time was a 

16 majority of the Committee favored the recommending the 

17 deletion of this provision altogether. The tide has 

18 turned, and I might say that the Chairman now is in a 

19 lone minority. So that perhaps I cannot report on our 

20 recommendation fairly by saying why -- but I can ! t explain 

21 why we put it in without explaining why I wanted it. out. 



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1 There are a number of difficulties inherent 

2 in retaining the section. The first one is, of course, 

3 is that in giving a right to jury trial in all civil cases, 

4 regardless of the amount in controversy, in $5, whether 

5 you take it or leave it, is such a small amount that it 

6 amounts to an absolute right, could create a tremendous 

7 amount of unnecessary expense and confusion if availed of 

8 by many litigants. It dates from the time when judges 

9 were not to be trusted and juries were. 

10 I think the reverse is often the case today. 

11 More seriously, however, and this is a subject which Mr. 

12 Case's Commission of the Maryland State Bar Association,. 

13 in formulating recommendations for the Courts of limited 

14 jurisdiction, and this Commission, in going through the 

15 judiciary article has had to contend with, is the question 

16 of jurisdiction, exclusive jurisdiction of the Courts of 

17 limited jurisdiction. .'■ 

18 V7e contemplate that the District Courts which 

19 this Commission has recommended be staffed by full-time 

20 judges in every County of the State and will have exclusivja 

21 jurisdiction to a given dollar amount uniformly throughout 



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the State and that amount will probably today be at least 
$500, and in the course of time it may go up as high as 
a thousand. 

If the right of trial by jury in all civil cases 
is retained, this would seriously conflict with the practi- 
cal ability of the legislature to create exclusive juris- 
diction in the lowest Courts, because anyone could pray 
a jury trial and, by so doing, could take his case away 
from the Court where it belongs . 

The State Bar Committee met the problem by 
recommending that the jurisdictional amount in the 
Constitution be $500. Our Committee was very hesitant to 
put dollars in the Constitution. I believe if it goes in 
here, it will be the only place where the same are mention 
ed and, inflation being what it is, it will probably 
necessitate a constitutional amendment every time the 
jurisdiction of the Courts of limited jurisdiction is . 
altered. . 

Thirdly, and perhaps this is the most interest in 
or persuasive to me personally, is that the provision 
doesn't really give protection to many people. It's one 



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1 thing to say that everyone shall have the right to call in 

2 a jury of his peers and have determined whether he is right 

3 or wrong or whether he owes money or whether he has to con- 
^ tinue his marriage, or what, but the provision doesn't work 

5 that way. It applies actually to a very limited class of 

6 cases and that is suits at law where a right to a jury 

7 existed at the time of the original Constitution, that is, 

8 suits for money damages in a law Court. 

In other words, a department store can sue you tc 

make you pay for the shirt you purchased, but if your wife 



H wants to take the shirt off your back in an equity or domes 

1^ tic proceeding, you have no right to say that you want 

13 twelve of your peers to decide whether she is right or wron£ 

14 Workmen's Compensation, cases and other situations where .the 

15 legislature has enacted an administrative remedy, in those 

16 instances, an employee is not entitled as a matter of con- 

17 stitutional right to have a jury decide whether he is 100 

18 per cent or only 50 per cent disabled. That is up to the 
1^ legislature, what right he has in that regard. 
: MR. MILLER: Would the lady yield for a question? 

It seems to me . I saw an article somewhere recently that the 



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1 Constitution of the State of New York, or the proposal for 

2 a new Constitution was being largely jeopardized, and it 

3 may not have been New York, but one of the larger States, 

4 because there was some question as to whether or not there 

5 could be a lav; passed which .would remove damage cases from 

6 the right to a jury trial, that they thought there was a 

7 great deal of pressure to make it possible, as in the 

8 result of a typical automobile damage case, that it should 

9 be decided by a Court without a right to a jury trial in 

10 estimating the damages. 

11 I am wondering if your Committee has considered 

12 the implications of anything radical in changing this around? 

13 MRS. BOTHE: Well, the Committee's recommendatior[, 

14 of course, is that the provision be retained without any 

15 monetary limit, so that the objections raised in New York, 

16 I believe, and I may be incorrect, . that what you are refer- 

17 ring to is not a constitutional provision, but a proposed 

18 statute in New York which would make automobile damages 

19 subject to administrative rather than Court procedures. 

20 MR. MILLER: It involved the Constitution, in 

21 some amendment, at least, as I remsmber it. 



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MRS. BOTHE: It would require a constitutional 
amendment under the New York Constitution, in order to do 
this. 
; THE CHAIRMAN: Well, your answer to Mr. Miller f s 

i question, though, is that the Committee, whether for his 
reason or some other, is recommending that he right to 

7 jury trial in civil proceedings be retained? 

8 MRS. BOTHE: Actually, let me say this, that if 

9 it were taken out of the Constitution, this by no means 

10 would mean that the right to a jury trial would be neces- 

11 sarily affected in any practical way. I don't think the 

12 day after the new Constitution was enacted that our presenj: 

13 practices would, with regard to jury trial, be in any way 

14 affected. 

15 For instance, the Workmen's Compensation Act, 

16 which is not protected by constitutional provision, today 

17 ' there are statutory means whereby a jury can be called 

18 upon- to determine the nature and extent of a workman's 

19 disability; but this is purely by statute and he cannot 

20 demand this. 

21 . There are a number of other areas where the 



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1 legislature has seen fit to give jury trials, under certain 
circumstances, where they would not otherwise exist. The 
legislature, on the other hand, has not seen fit to grant 
jury trials in domestic cases. A number of States provide 

5 that you can have a jury to determine whether you left youi 

6 wife or she left you. Maryland does not. 

7 MR. SCANLAN: Am I wrong, is there any implicaticjr 

8 in the Committee's language that the equal protection of 

9 trial by jury in civil proceedings would new be broader? 

10 For instance, it flatly says every person shall have the 

11 right of trial by jury in issues of fact in civil pro- 

12 ceedings . 

13 Suppose the General Assembly — I suppose they 

14 wouldn't have to amend this, but in a hypothetical case, 

15 amended the Blue Sky law and provided, in addition to the 

16 penalties for Blue Sky, the right of a. purchaser to sue. 
1*7 for damages against those who misrepresented in connection 

18 with the sale of securities. 

19 Now, that certainly is a civil proceeding. True 

20 it is a new one, maybe, but it's a civil proceeding. Coulp 

21 the claim be made, under the plain language of this. 






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constitutional provision, that the legislature would have 
to provide for a jury trial? 

MRS. BOTHE: No, I think it has to be read in 
connection with the history of the existing Section 6 of 
Article XV. We preserved the crucial language in that 
section in our recommendation and, presumably, I see no 
reason why it wouldn't be continued to be construed by the 
Court of Appeals in the same manner as Section 6 was, and 
that is to apply only to actions which existed at the time 
of the passage of the original Constitution, not this one. 

THE CHAIRMAN: Before we have any further general 
discussion, perhaps the other members of the Committee wan 
to comment on this. Mr. Gentry? 

MR. GENTRY: My comment generally was that whil 
I originally started out favoring deletion, I was persuade 1 ' 
by the fact that every other State has such a provision as 
this. The State Bar Association recommends it and, while 
I feel this Commission should be progressive and move a' 
this is an area where I wouldn't want to step in and be an 
innovator, and, for that reason, I was in favor of continu 
5.ng the provision. I don't think we have changed the 



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language from what it was. 

THE CHAIRMAN: Mr. Kaile? 

MR, HAI'LE: I have always held the position we 
should retain this. 

DR. TEMPLE TON: Our Chairman gave a good pre- 
sentation. 

THE CHAIRMAN: Any further questions? 

MR. HARGROVE: In continuing the language of the 
present constitutional provisions, we now, in doing this, 
would have to look at what the. new Constitution will have 
in it. I think, in view of that, wouldn't it pose a rathe 
serious problem where we say, in the several Courts of 
law in this State, because it seams to me, under the lan- 
guage here, you could just as easily demand a jury trial" 
in the District Court, under the constitutional provision, 
and perhaps could get it. Would it b'e better just to leav|e 
out, in the several Courts, and it would then be up to the 
•legislature to say, well, you could have, such as you do. 
now- in the People's Court, you. could have a jury trial, bu 
you have to request a jury trial and the case would auto- 
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than leave it in the wording we have here, because it 
looks like it's almost mandatory, you insist on it. 

THE CHAIRMAN: Mrs. Bothe? 

MRS. BOTHE: I think perhaps Judge Hargrove has 
a point when he talks about several Courts of law in this 
State, in view of the recommendations regarding the single 
Court system that we contemplate. Whether several law 
Courts -- of course, several law Courts as used in the pre- 
sent Constitution refers to the Courts when sitting as law 
Courts . 

Those of you who aren't lawyers may not recogniz 
that Courts sit with two heads, in equity and in law, and 
the Constitution Only refers to them in the capacity of 
law Courts . 

THE CHAIRMAN: Wouldn't .the more direct answer 
to Mr. Hargrove's question be the same as it was hereto- 
fore, with respect to the. People's Court, and I think the 
Court of Appeals said that since you had the right of tri 
by jury on appeal, that satisfied the constitutional re- 
quirements. Mr. Case? 

MR. CASE: Mr; Chairman, is this the place to 



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make a motion to amend this, because I think this is quite 

2 bad? 

3 THE CHAIRMAN: Yes. 

4 MR. CASE: Well, I would move that this recom- 

5 mendation, shown on Page 10, be amended by adding the words 

6 after the word proceedings, involving such amounts as may 

7 be fixed by law, which would mean, in effect, that the 

8 right to a jury trial in a law case would be preserved, 

9 but that the legislature by act would fix the jurisdiction-- 

10 al amount. 

11 THE CHAIRMAN: Before you discuss it, is there 

12 any second? 

13 MR. SCANLAN: I second it. 

14 THE CHAIRMAN: Now, Mr. Case? 

15 MR. CASE: Now, Mrs. Bo the has referred to the 

16 Committee of which I was Chairman, the Judicial Administr 

17 tion Commission Committee- of the State Bar Association, 

18 which went into this subject at great length and upon whicl 

19 a lot of the thinking, I'm sure, of this Commission was 

20 based. in the recommendation of the so-called District 

21 Court, because it was in that report that the concept of 



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the District Court was made and it was that report that 
was adoptee! unanimously, except by one, in a vote of the 
State Bar Arsociation's Annual Convention in Atlantic City. 

Now, here is the problem. If you provide that 
there shall be a trial by jury in every case, as they are 
now limited, in practical effect, you wreck the system of 
the lower Courts that you are trying to establish and you 
wreck them in this way; that if a suit is filed in the lower 
Court, you can immediately get a transfer by praying a jurj 
trial and there is nothing exclusive then about the juris- 
diction and, as a matter of fact, the lower Court, the 
District Court then really becomes nothing but a big mecca 
for discovery. You get a lot of people to come down there 
and then you can get a trial de novo in the Circuit Court 
because of this provision. 

Now, to meet that point and to preserve the 
integrity of . these lower Courts and to really make them 
Courts and not just places where people can file suit and 
then they can be transferred, and so on and so forth, 
our Committee recommended and the State Bar Association 
approved the method by which exclusive jurisdiction could 









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be vested in these Courts and couldn't be moved for any 
reason. 

MR. MILLER: With the right of appeal, though. 

MR. CASE: With the right of appeal, but the 
right of appeal on the record. 

MR. MILLER: Not de novo. 

MR. CASE: Right, and I gave you this background 
because it leads to V7hat we are talking about here. In 
making this recommendation to try to put exclusive juris- 
diction in the lower Courts, we came face to face with thiJ 
constitutional provision which says you can have the right 
of a jury trial in a civil case for $5 or more, and our 
Committee recommended that it be raised to 500, because 
this seamed to be the point at which the legislature in 
most of the big Counties have established exclusive, so- 
called exclusive jurisdiction in the People's Courts where 
People's Courts exist. . 

I was not particularly happy with the $500 limit 
I thought, as Mrs. Bothe has expressed herself, that a 
$500 limit, if it is good today, conceivably could not b;: 
good ten years from now, but it seems to me that there is 






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no reason why the legislature cannot by law fix the 
jurisdictional amount below which you don't get a jury tria 

Now, if this is done, then the integrity of your 
lower Court system will be preserved. It will have exclu- 
sive jurisdiction and the entire system will work. 

Now, a poss5-ble answer to this might be, well, 
let's go ahead and let the lo-7er Courts impanel juries, too|, 
let the District Courts have juries, and this is, of course 
a possibility. But, I rather think, in smaller matters, 
in the tremendous volume of cases that have to be put out, 
the impaneling of juries, even if there are many juries, 
if you will, is just a time consuming thing which doesn't 
further the administration of justice. 

Nov;, we f ve got an area of cases which I think 
are more applicable to this argument than the ones Mrs. 
Bothe mentioned, in the Workmen's Compensation cases, be- 
cause, of course, you do have a jury trial on appeal, but 
in the Federal Courts, in the. Tucker Act cases, you have 
no jury trial. These are Court cases against the govern- 
ment. Personal injury cases of all kinds are tried and 
tried well and expeditiously, without juries, in the 






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1 Federal Court. 

So, it seems to me there is nothing inviolate 

3 about the elimination of the jury trial. Certainly, in 

4 my judgment, it ought to be eliminated in a jurisdictional 

5 amount that the legislature deems proper, so that these 

6 lower Courts can have the force and dignity that the Com- 

7 mission wants them to have. 

8 THE CHAIRMAN: Mr. Hargrove? 

9 MR. HARGROVE: I think what Mr. Case is saying 

10 is extremely important. I would like to give you a good 

11 example of what actually happens, because I've had, as 

12 you might know, some experience in the lower Court. I 

13 think it is one 'of the more serious problems in the People 

14 Court, which is even if the various litigants can remove 

15 their cases to, for example, in Baltimore City, it is not 

16 a question of a jury, but it's a question of removal. 

17 You can get a trial da novo, as you know, now 

18 for a simple matter of $2. You can get a discovery for $2 

19 and you can remove it and get a completely new trial. 

20 If the monetary amount of removal is raised, it 

21 might be also an additional deterrent, because if you 












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look at the cases, and there are close to maybe a couple 
of hundred thousand cases a year in Baltimore City, I would 
say seventy-five per cent of them are $500 or less. Of 
course, at that time the jurisdiction was $1000 and now it 
is 2500, but I think the large bulk of the cases are below 
$500. Particularly in the lower Courts, you have furniture 
salesmen and installment salesmen predominately in the lower 
Courts. These are the type cases you get. As to the pure 
contract cases, and so forth, you very rarely get those. 

If this were 500, I think there might be an 
argument that the legislature can virtually remove the 
right of jury trial by raising or lowering the jurisdictior. 
as it sees fit, but I think perhaps it could prevail, if it 
is reasonable. I don't know, you could probably make an 
argument against it, but if it is at all possible to have 
such a thing, I think it would be very helpful , particular] 
to those lower Courts who are today being used for discover 
more or less as a discovery procedure by both parties and 
they really burden the Court with a case which is really 
not being decided, but being prepared for soma future pro- 
ceeding. 



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1 THE CHAIRMAN: Mr. Miller? 

v MR. MILLER: I just want to say, from the practi- 

cal standpoint, after rough and tumble legal experience over 

4. many years and having been on the People's Court, I think 

5 what both of these gentlemen said is very enlightening 

6 and very true, and I would like to speak on behalf of the 

7 amendment that Mr. C a se offered, because I think a some- 

8 what similar situation has existed in Federal law, that 

9 the right of diversity, changing jurisdictions on account 

10 of diversity of citizenship, and over the years it's become^ 

11 obvious that the amount had to be raised from 3000 to, I 

12 think it's 10,000 now, but I think if we leave it as sug- 

13 gested in the amendment and let the legislature write the 

14 limit, we won't have to have the Constitution amended if 

15 we have more inflation, or something of that sort. 

16 THE CHAIRMAN: Mr. Clagett? 

17 MR. CLAGE1T: Is it contemplated in your amend- 

18 ment, Mr. Case, that the legislature could provide a $500 

19 limit for Calvert County and $2500 for Prince Georges? 

20 MR. CASE: Well, what we're doing now, the 

21 legislature wouldn't be able to pass special laws like that, 



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will it? It would be a general law. 

MR. CLAGETT: We've, got it exclusively, insofar 
as judicial matters are concerned, in the provision for 
legislation by -- well, that is, the broad grant of powers 
to the Counties, and this would be within that exclusive 
area which they are excluded frora. So, I don't know whethe 
it would apply. 

MR. CASE: Well, it is contemplated that it is 
to be uniform throughout the State. 

MR. CLAGETT: If we get that in, I think that 
will do it. 

MS. BOTHE: I would like to comment, if I may, 
on the recommendation. If we're trying to keep the provi- 
sion in the Constitution for traditional reasons and be- • 
cause it exists in every other State Constitution, then I 
think Mr. Case's suggestion is a good one; but as a matter 
of actual result, all he is saying is that the legislature 
shall provide for where jury trials are going to occur, 
which is what the present situation is, as I stated ear lie 
about Workmen's Compensation, where there is no constitu- 
tional mandate, but the legislature has granted it, anyway 



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MR. CASE: But they have done it because of the 
constitutional provision. 

MRS. BOTHE: No, they have not. 

MR. CASE: Of course, they have. 

MRS. BOTHE: The Court of Appeals held that the 
administrative procedure did not entitle a litigant under 
the Workmen's Compensation Act to a jury trial, as a matter 
of right. He could have it by statute. He has it by 
statute. Now, you are saying that everybody gets it by 
statute, but it is in the Constitution. 

MR. CASE: Mrs. Bothe -- 

THE CHAIRMAN: Mr. Case, the record won't be 
complete this way. Go ahead, Mrs. Bothe. 

MRS. BOTHE: I completed my sentence, but what it: 
amounts to is that the legislature determines who gets a 
jury trial in a civil proceeding, but the' Constitution en- 
courages the legislature to place some basis upon it. 

MR. CASE: With all due respect you are just 
absolutely wrong about that, because a litigant in a 
Workmen's Compensation case has his choice. He can sue at 
common lav;, he can go into the Court -- surely, he can. 



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MR. GENTRY: He cannot. 

MR. CASE: Yes, he can. 

THE CHAIRMAN: One person has the floor at a 
time, please. You will have a chance. 

MR. CASE: He has the common law action, if he 
wants to exercise it, but he gives up his rights under the 
Workmen's Compensation lav/; that is what you're thinking 
of. He cannot have it both ways . 

THE CHAIRMAN: Mr. Gentry? 

MR. GENTRY: In elaborating a little further 
on what Mrs. Bothe says, certainly, the main basis for 
a provision such as this, which we have inherited from 
days gone by, is to give the people this right to a judg- 
ment from their peers. When I spoke before, I said I 
originally thought we ought to delete it, and that is what 
we are coming back to when you talk about this amendment. 
This amendment takes the entire heart and meaning out of 
it. I would readily grant it gives a very practical 
effect to it and it holds and preserves this exclusive 
jurisdiction in the lower Courts, but by doing so, you 
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here at all, as to the right such as we're talking about, 
putting it in the Declaration of Rights. It is not a 
right of the people to be judged. The legislature is goin, 
to tell them what their rights are with regard to the 
setting of the amounts. 

THE CHAIRMAN: Mr. Sayre? 

MR. SAYRE: I just would like to ask how important 
is it to have this right without a dollar amount, keeping 
what Mr. Gentry just said? How important is that? 

THE CHAIRMAN: Is this a rhetorical question or 
are you asking — 

MR. SAYRE: I'm asking if this is a right that 
we really ought to preserve, then I would be for it, but 
I don't know. Is it a right that we need? 

THE' CHAIRMAN: 1 again ask, are you addre.ss5.ng 
the question to someone? 

MR. SAYRE: Well, I guess to the attorneys and 
judges in the room. 

MRS. BOTHE: I have expressed my views. 

MR. SAYRE: In the case of Judge Hargrove, you 
are deluged, is that what you are saying? 



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MR. HARGROVE: No, I don't think in the People's 
Court: the question of a jury trial is a problem at all. I 
think the question of removing it is more of a problem 
because 1 would say a large percentage of the cases that 
are removed from the People's Court are not really tried 
by jury. They go to the Baltimore City Court and still ha\ 
it tried by a judge, and a large number of them. Very few 
of them are tried by jury. 

THE CHAIRMAN: Although I am not a coffee drinkeif, 
let me interrupt here and say that if we delay much longer, 
the coffee will get cold. So, let us recess for lunch, 

(At this point there was a luncheon recess.) 



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THE CHAIRMAN: Let's resume if we can, and I 
want to keep the pressure on you a little bit for the res: 
of the afternoon because a number of you have indicated 
to me that it is either very difficult or, in some in- 
stances, impossible for you to be here this evening, 
therefore, I would like to not cut off debate at all but 
just ask that we move briskly. 

The question is before you on the motion :o 
amend the Committee's recommended provision with respeci 
to trial by jury in civil proceedings on page 13 of the 
report. Dr. Bard. 

DR. BARD: I would like to ask Mr. Case whether 
he would object to having the statement as amended in 
Article IV dealing with the judiciary rather than in z'm 
Declaration of Rights. I think the amendment, as I see 
it now, would not be qualified for the Declaration of 
Rights which is concerned primarily with inherent rights. 

THE CHAIRMAN: I don't think Mr. Case's motion 
went to its position and I would rather leave that to the 
Committee on Style. 

DR. BARD: All right. Therefore the s 



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3 below the Committee's recommendation would not neces- 
sarily hold in terms of the motion? 
c , THE CHAIRMAN: That's correct. 

.; DP. BARD: All right. 

r, . MRS. BOTHE: Mr. Chairman. 

( THE CHAIRMAN: Mrs. Bothe. 

MRS. BOTHE: I would point out that leaving 
such a matter to the Committee on Style points up the 

{: objection to the amendment in the first place because it 

] would simply be an excoriatory kind of a sentiment if 

Vi enacted with the amendment, and as such, to put it in the 

12 judiciary or some other part of the Constitution would be 

13 foolish, yet it is an inconsistent statement for the 

14 Declaration of Rights. I think that's one reason that it 

15 ought to be defeated. 

16 THE CHAIRMAN: Any further discussion? Mr. 

17 Mindel. 

18 MR. MINDEL: Mr. Chairman, I asked Mrs. Bothe 

19 at the lunch hour how we reconciled this Article with the 

20 one in the Federal Constitution which provides for jury 

21 trial in cases exceeding $20, Article VII. 



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MR. SAYRE: That's civil, you are talking 
about the Federal Constitution. 

MR. MINDEL: Federal Constitution, whether it 
has an)' bearing on this or not. 

THE CHAIRMAN: Do you have any statement , Mrs. 
Bothe? 

MRS. BOTHE: Well, I will read Article VII of 
the United Staces Constitution. It says, In Suits at 
Common Law where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be pre- 
served, and no fact tried by a jury shall be otherwise 
re-examined in any Court of the United States, than 
according to the rules of the Common Law. 

Now, frankly, the Committee did not research 
the possibility that this Federal provision was one which 
was accorded to the citizens of the States as the Four- 
teenth Amendment grants certain other rights. I don't 
believe it does, and the language of Article VII would 
indicate that the discussion relates to the Courts of the 
United States and not the State Courts. Of course, o 
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of the State. 

MR. MILLER: Mr. Chairman. 

THE CHAIRMAN: Mr. Miller. 

MR. MILLER: Would this not, by implication, 
certainly seem to have been decided over the years? For 
many many years the diversification of citizenship cases, 
which I happened to talk about before, was limited to 
$3,000. Now, I don't think that that Law would have -- 
and I believe it is now 10 -- but I don't think it could 
have lasted throughout the years if there had been a 
Federal Constitutional question about it. 

According to a narrow interpretation there, you 
could go into the Federal Court with a $50 claim and de- 
mand a jury trial and certainly it has never been done 
that I have heard of. 

MR. MINDEL: Congressman, doesn't the $10,000 
provision provide to the jurisdiction of the Federal 
Court only and the diversification and jurisdiction, not 
so much to a jury trial? 

MR . MILLER: Well, it is nothing about a jury 
trial, but the only way you can take a case out of the 



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State Court is for various and sundry reasons, and one 
of them is diversity of citizenship. 

MRS. BOTHE: I would say Article VII means only 
if there is jurisdiction that the right to jury trial 
accrues if the case is worth more than $20. 

MR. MILLER: Of course, if you go into the 
Federal Court, or through diversity of citizenship or any- 
thing else, you do have a right to jury trial automatical- 
ly if it is a law case. 

THE CHAIRMAN: If it is a case in a Court of 
the United States, then the Constitutional provisions 
respecting it apply. 

Just so that the record will be clear, when you 
referred to Article VII, it is in the red book e>s Article 
VII, it is the Seventh Amendment to the Constitution of 
the United States. Any further discussion? Mr. Sayre. 

MR. SAYRE: I guess this is a rhetorical ques- 
tion. I would like to address it to Judge Hargrove and 
then to Mr. Case, as to why this should be a Constitutional 
matter, rather than statutory? 

THE CHAIRMAN: Why what should be a Consti- 



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tutional matter, a guarantee of jury trial? 

MP.. SAYRE: A guarantee of jury trial in civil 
proceedings . 

THE CHAIRMAN: Judge Hargrove, do you want to 
c ommen t ? 

MR. HARGROVE: Well, except I don't know that 
it has to be a Constitutional question, except that it 
has been in the Constitution from its inception. I sup- 
pose you could take it out, and I suppose the practice 
has grown such that you do not have a jury trial today 
in the civil cases as we know them. Now, if you could 
possibly get it through the Convention and approved by 
the voters, I think within a matter of a year you would 
probably have the hue and cry for an amendment for a jury 
trial. I don't think you have to have it, but I think 
it is almost a necessity whether we like it or not. 

THE CHAIRMAN: Mr. Case, do you want to comment? 

MR. CASE: Well, I think anything I say would 
just be follow-up to what Judge Hargrove said. The 
State Bar Association, in dealing with this subject, 
felt that it was a matter of tradition which had been in 



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the Constitution, in the Federal Constitution, and that 
the people would not understand a complete reversal of 
^ this, although the State Bar Association very strongly 
wanted, as I say, the liberalization of it, to preserve 
the integrity of the District Courts. 

MR. MARTINEAU: Mr. Chairman. 

THE CHAIRMAN: Mr. Martineau. 

MR. MARTINEAU: I would just like to support 
Mr. Case's amendment. I think the proposal, as amended, 
is the best compromise between what is really the most 

11 theoretically desirable thing and what is the practical, 

12 obtainable thing, and I think that the proposal, as it is 

13 made by the Committee, is much too narrow, and I think 

14 you would soon have a Constitutional amendment proposed 

15 to eliminate some matters from jury trial, and I think the 

16 wa >' to handle it is through the Legislature, and I don't 

17 think we would have to worry about the Legislature rais- 

18 ing the minimum to some ridiculous amount of one hundred 

19 or two hundred thousand dollars, merely to get rid of the 

20 jury trial. It is not going to be done and I don't think 

21 we really have to concern ourselves with that, so I would 



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support the amendment made by Mr. Case. 

MR. MILE: Mr. Chairman. 

THE CHAIRMAN: Mr. Haile. 

MR. HAILE: This amendment which has been offer- 
ed seems to require some action by the Legislature. In 
the absence of such action by the Legislature, then we 
have no right to trial by jury, so I would suggest that 
it be reworded in some fashion, so that even though the 
Legislature doesn't act in fixing a minimum, that the 
guarantee of a right to jury trial be preserved in our 
Constitution . 

MRS. BOTHE: Mr. Chairman. 

THE CHAIRMAN: Mrs. Bo the . 

MR.S . BOTHE: I was going to bring the Chairman's 
language to the attention of the Commission. 

After we recessed, Mr. Eney jotted down some 
language which I think the proposer of the amendment and 
the Committee would find more agreeable. I don't know 
if it meets Mr. Haile 's -- 

THE CH A IRM AN : Well, read it. 

MRS. BOTHE: -- comment. It probably doesn't,, 



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but it reads as follows, Every person shall have the right 
of trial by jury of issues of fact in civil proceedings 
at law in the Courts of the State in which the amount 
of the value in controversy exceeds such minimum as roay 
be fixed by Lav; . Nov;, the may be in there I assume would 
mean if the Lav? fixed no minimum everyone would have an 
untrammelable right to a jury trial, 

MR. HAILE : I was going to suggest if it ex- 
ceeds $10 or such other minimum as may be provided by 
Law. $10 is in there. 

THE CHAIRMAN: I personally don't think it would 
add very much. Let me find out first, as a matter of 
procedure, Mr. Case, would you be willing to accept the 
language read as an amendment to your motion? 

MR. CASE: I have no objection to it. It is the 
thought that I would like to get in. 

THE CHAIRMAN: Yes. Well, the purpose of the 
amendment was to get away from the requirement of affirma- 
tive action that seemed implicit in your language, and in- 
stead have the Legislature only fix the minimi] , and, 
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because replevin or ejectment or other proceedings might 
not have dollar amounts . 

There were several people that seconded the 
original motion. Do they accept the amendment? 

MR. MILLER: I spoke in favor of it and I am 
perfectly satisfied with that language. 

THE CHAIRMAN: Mr. Haile, do you feel strongly 
about inserting the added language? 

MR. HAILE: No indeed, I just thought it clari- 
fied it, made it certain. 

THE CHAIRMAN: Well, the motion as amended then 
would be to rephrase the section as recommended by the 
Committee and appearing on page 13, to read as follows: 
Every person shall have the right of trial by jury of 
issues of fact in civil proceedings at law in the Courts 
of this State in which the amount or value in controversy 
exceeds such minimum as may be fixed by Law. Any further 
discussion? 

I want to ash a question just to get it in the 
record, really, two questions. I take it that this pro- 
vision does not require a jury of twelve or any other pre- 



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scribed number, is that correct? 

MRS. BOTHE: I have seen cases, not in connect- 
ion with our research here, that hold that there is no 
necessity for a jury of twelve, and a number of States 
provide for smaller sizes. 

THE CHAIRMAN: And, secondly, this provision, 
unlike the corresponding; provision in the Declaration 
of Rights with respect to criminal trials, does not require 
a unanimous verdict, so that the adoption of this pro- 
vision would leave it to the Legislature to provide in 
some or all cases for a jury of other than twelve and pro- 
vide for a majority or some other proportionate vote, 
other than a unanimous vote. 

MRS. BOTHE: Mr. Chairman, I would flag that. 
Speaking off the top of my head, because the Committee 
certainly didn't go into it, but I don't think it is a 
r tter of absolute record that the Legislature would be 
able to prescribe less than a majority because under that 
philosophy they might prescribe a minority. 

THE CHAIRMAN: Not less than a majority, less 
than unanimous. I point out to you the only reason for 



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the comment: is that the corresponding provision with 
respect to the criminal proceedings specifically says 
unanimous and you are not making such a recommendation-- 

MRS. BOTHE: No. 

THE CHAIRMAN: -- as to the civil proceedings. 

MRS. BOTHE: But whether or not that means the 
Legislature could prescribe something less, I don't think 
we are prepared to answer that. 

THE CHAIRMAN: All right. Any further dis- 
cussion? Are you ready for the question? 

The question arises on the motion to rephrase 
this section or article in the manner just indicated, as 
I read to you. 

All those in favor signify by a show of hands. 



Contrary . 



The motion carries fifteen to one. 

Now, any further comment on this section? Dr. 



Bard . 



DR. BARD: 1 raised the question earlier but 
you answered it . 

THE CHAIRMAN: All right. Then let's move to 



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Article XV, Section 10 on page 13. 

MRS. BOTHE: This section provides how officers 
may qualify and where the executed oath is to be filed. 

The Committee was again of the opinion that 
this was a matter for statute or administrative procedure 
and didn't belong in the Constitution, and we recommended 
the subject matter not be included in the new Constitution. 

THE CHAIRMAN: Any questions? Comments? If 
not, we will move to a consideration of the Seventh Re- 
port of the Committee on Miscellaneous Provisions. 

This is a report dated November 21, 1966. Mrs. 
Bo the. 

MRS. BOTHE: The Seventh Report of the Committee 
on Miscellaneous Provisions deals with the subject of 
Constitutional revision . 

I would think it unnecessary to go into any great 
detail with this group as to the present provisions in 
the Constitution relating to the subject as a result of 
an abortive, a number of abortive efforts to use it. 

The provisions are contained in Article XIV, 
two sections, one dealing with Const it u tie Vmendraents, 



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the other with Constitutional Conventions. 

Section 1 provides that an amendment shall be 
initiated by the General Assembly by a vote of three- 
fifths, and then goes en to indicate the necessity for ■ 
publication and placing the issue on the ballot. 

Section 2, to many people appeared to call for 
the regular holding of Constitutional Conventions if 
the will of the people to be taken at twenty-year inter- 
vals so indicated, but as we are all much aware this has 
not been the case. 

The will of the people has been construed by 
the Courts to mean the majority, by the majority of those 
eligible to vote, rather than the majority of those vot- 
ing, and it is a near impossibility to secure such a 
majority, with the result that the section has never 
resulted in the calling of a Constitutional Convention 
in Maryland . 

The Committee has proposed that the entire -- 
that the provisions of Sections 1 and 2 be completely re- 
written as follows , and 1 think perhaps, Mr. Chairman, 
I should take it up section by section. 



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THE CHAIRMAN: Yes, I think we had better. 

MRS. BOTHE: Proposed Section 1, Amendments 
to this Constitution may be proposed either by an affirma- 
rive record vote of three-fifths of the members of each 
House of the General Assembly or by a majority vote of 
a Constitutional Convention called by the General As- 
sembly. In either case, the amendments so proposed shall 
be submitted to a popular vote, and unless they otherwise 
provide, shall become effective thirty days after approval 
by a majority vote of those voting thereon at any special 
or general election, as determined by the General Assembly 
Such popular vote shall be preceded by due notice there- 
of, as provided by Law. 

THE CHAIRMAN: Any questions as to this section? 

Any comment? 

DR. JENKINS: Mr. Chairman. 

MR. CHAIRMAN: Dr. Jenkins. 

DR. JENKINS: This is a legal question, I sup- 
pose. It is conceivable that an amendment -- my question 
is about the thirty-day limit -- it is conceivable that 
an amendment may require certain other legislative adjust- 



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merits which may require more than thirty days, such as 

the reorganization of the judiciary, or may require 

supporting legislation. I simply raise this question with- 

some 
out sponsoring this, whether it be desirable, or/ time 

as otherwise provided in the amendment. 

THE CHAIRMAN: That is in there, Unless they 
otherwise provide. The amendments so proposed shall be 
submitted to a popular vote, and unless they otherwise 
provide, meaning the amendments -- 

DR.. JENKINS: That says, They otherwise provide, 
shall become effective. 

THE CHAIRMAN: Yes. 

DR. JENKINS: Well, a college president can't 
read very well. 

MR. SAYRE: Mr. Chairman. 

THE CHAIRMAN: Mr. Sayre. 

MP. SAYRE: I may be joining you. Can you have 
a maiority vote of a Cons ticutional Convention? It has 
to be of members of a Constitutional Convention, doesn't 



it? 



MRS. BOTKE: Ask Dr. Burdette 



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THE CHAIRMAN: I think that would-be a question 
for the Style Committee. 

MR. SAYRS: Okay. As I take it, when we have a 
Constitutional Convention, we are talking about an abso- 
lute majority of those being required here, is that cor- 
rect? 

THE CHAIRMAN: I take it that's the concept of 
the Committee. It is a majority of the members, not a 
majority of those present. 

MRS. BOTHE: Yes. 

THE CHAIRMAN: Any further questions? Mr. 
Martineau . 

MR. MARTINEAU: Are these merely informative ' 
questions or can we -- 

THE CHAIRMAN: Let's get the questions first, 
then if there is a motion we will take it up. 

MR. MARTINEAU: One problem I have with this 
is it is phrased in terms of giving the power to amend 
the Constitution to both the General Assembly and the 
Constitutional Conventions, and there is no distinction 
drawn between the power to adopt amendments and the power 



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to make complete revisions . 

My concept has always been that the General 
Assembly or the Legislature had the right to amend the 
Constitution but no': the right to make a complete re- 
vision of the Constitution and submit it to the voters, 
and it seems to me there ought to be a distinction here 
that only a Constitutional Convention could propose a 
complete revision of the Constitution. 

THE CHAIRMAN: A difficulty with that, that 
you find referred to in the writings, is that where to 
draw the line between what is an amendment and what is 
a complete revision, and it becomes practically impossible, 
so that you could have an amendment that would change ' 
95 per cent of the Constitution and still be an amendment. 

MP. MARTINEAU: Well, you could, except I don't 
think the Court would say that it would. I would think 
that a Legislature would not do that because of the fear 
that if you do draw a -- if the Constitution draws a 
distinction, that distinction must mean something and the 
Court is going to try to draw a line between what is i 
amendment and what is a complete revision. 



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As it is phrased here, it is perfectly proper 
for the Legislature to make a complete revision of the 
Constitution and to submit it to the voters, and I would 
be opposed to that. 

THE CHAIRMAN: Mrs. Bo the. 

MRS. BOTHE: We discussed this, Bob. We don't 
regard it this way. 

In the first place, the section deals with 
amendments, not with provisions. In the second place, 
we feel, as a practical matter, it would be literally 
impossible for the Legislature to completely revise the 
Constitution through this source. They would have to 
publish each proposal. They would have to subject the 
new Constitution to piecemeal approval of the voters anc-- 

MR. MARTINEAU: I don't see why they would. 
They would propose the entire Constitution as one amend- 
ment . 

MPS. BOTHE: Are you speaking now of our failure 
to specify particularly how the amendments are to be 
publicized and broken down? 

MR. ; J,: No. 



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MR. MARTINEAU: No, no, no. I am talking 



about 



THE CHAIRMAN: Well, I don't think it is going 
to be very clear in the record what is being talked about. 
First off, this section deals with amendments, that's 
the answer to your specific question. 

MR. MARTINEAU: Well, it may, but I don't think 
there is another section, unless I am mistaken, dealing -- 

THE CHAIRMAN: The next section deals, is in- 
tended to deal with the rewriting of the Constitution, 
the next section . 

MR. MARTINEAU: You mean Section 2? 

MR. HARGPOVE: Yes. 

THE CHAIRMAN: That's correct. 

MR. MARTINEAU: Well, I would have thought, just 
upon reading this, that the Section 2 only relates to 
how a Constitutional Convention referred to in Section 1 
is obtained . 

MR. SAY: * I don't think that's clear. 

DR. BARD: Mr. Chairman. 



THE CHAIRMAN: Dr. Bard 



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MR. BARD: V;hat I like about Section 1 that 
isn't present in the present Section 1 is that it makes 
it very clear that you can have a Constitutional Con- 
vention that is concerned with a so-called limited Con- 
stitutional revision, not necessarily a total Constitu- 
tional revision, and many States do have limited Con- 
stitutional revisions by Constitutional Conventions. 

MR. MARTINEAU: I don't think this section -- 

THE CHAIRMAN: That is the only way New Hamp- 
shire operates . 

MR. MARTINEAU: I don't think Section 1 implies 
that at all. Section 1 -- 

THE CHAIRMAN: We are getting into a debate 
that won't mean anything unless there is a motion. V;ou,ld 
you make a motion? 

MR. MARTINEAU: I would move that appropriate 
language be placed in Sections 1 and 2 here which would 
provide that the Legislature may only propose specific 
amendments to the Constitution and that only a Constitu- 
tional Convention can propose a complete revision of the 
Constitution. 



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1 THE CHAIRMAN: Is there a second? 

2 MR. SAYRE: Seconded. 

3 THE CHAIRMAN: Now, do you want to discuss it, 

4 Mr. Martineau? 

5 MR. MARTINEAU: No, I think I have made my dis- 

6 cussion. 

7 THE CHAIRMAN: Any further comment? Mr. Gentry. 

8 MR.. GENTRY: I will discuss it to the extent 

9 I think we already have that. Certainly, Section 1 re™ 

10 lates to amendments. It is true that you run the risk 

11 of an amendment that would change 95 per cent, but I don't 

12 see any way around to use fine language to prevent that, 

13 other than the supervision that the Court might give, 

14 to say that a completely new Constitution by the -- written 

15 by the General Assembly in that fashion and under the 

16 guise of an amendment just wouldn't hold up. That's the 

17 chock you would have to hope that the Courts would exer- 

18 cise, but certainly only Section 1 which gives the initia- 

19 tive to the General Assembly only relates to amendments, 
and not until you get the Constitutional Convention in 
Section 2 do we talk about a changed Constitution. 



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THE CHAIRMAN: Dr. Michener . 

DR. MICHENER: I just want to comment that even 
if the Legislature were to propose a whole new Consti- 
tution, it has to be approved, and if the voters are in 
favor of it, what is wrong? 

THE CHAIRMAN: Any further discussion? It 
seems to me it would be utterly impossible to accomplish 
this change, and if it were possible, it would be unwise. 

Pennsylvania has submitted a revision of its 
Constitution in the form of a series of amendments, so 
that the voters could accept or reject different parts. 

I don't see how you would possibly phrase lan- 
guage that would give you any definition at all of what 
constitutes an amendment that is an amendment or a series 
of amendments that is something less than a revision, 
and what is a revision, but in addition to the 'reason 
that Dr. Michener pointed out, it seems to me it is really 
immaterial. I see no reason why this amendment, whether 
it amounts to as much as a revision or not, could not be 
proposed either by the Legislature or by Convention. Do 
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MR. MARTINEAU: My only comment would be, I 
think this, the very action of this Commission in its 
recommendation that the rewording of the Constitution 
that we thought was necessary had to be done by a Con- 
vention and could not be done by a Legislature drafting 
specific amendments supports my proposal. 

Further, I don't think that anyone thinks that 
a Legislature meeting for a limited period during the 
course of the year has the capability or the disinterested- 
ness to draft a complete revision of a Constitution. 

I don't think really, as a matter of procedure, 
that in any State that the revision procedure is follow- 
ed to any great extent by having the Legislature propose 
revisions. I think the only intelligent way is to do it 
through a Convention, and all I am really suggesting is 
that the language here read that amendments may be propose<j! 
by the General Assembly, and amendments or complete re- 
vision of the Constitution be proposed by a Constitutional 
Convention which I think is the way we all feel is the 
way to either amend or completely revise the Constitute 

THE CI; ■-.: Any further discussion? Mr. 



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MR. SAYRE: I don't know if this clarifies it. 



My only concern on that point would be amendments or re- 
vision. I don't think we should restrict whether we shoulc 
revise by amendment or not. V ? ould that add anything in 
terms of the Committee or not? 

THE CHAIRMAN: I wouldn't think so, from the 
Committee's previous comment. 

Are you ready for the question? The question 
arises on the motion to amend Section -- proposed Sections 
1 and 2 with appropriate language to limit the right of 
the Legislature to propose amendments which do not amount 
to complete revision and to authorize conventions to 
amend or revise. A vote Aye is a vote in favor of the 
proposed change. ' 

All those in favor, please signify by a show 
of hands. Contrary. The motion loses one to sixteen. 

MR. GENTRY: Mr. Eney. 

THE CHAIRMAN: Mr. Gentry. 

MR. GENTRY: A thought just occurred to me that 
a record of this vote will show something, that we dis- 



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approved something that we want. Frankly, I voted 
against this because we already had it. 

THE CHAIRMAN: I don't think the record shows 
it was disapproved at all. I think the thing disapproved 
is the addition of the language proposed. 

MR. GENTRY: So long as it is understood the 
reason for those voting against it was the language 
wasn't necessary because it was already there. 

THE CHAIRMAN: Well, I don't know that that is 
the reason that everybody had. 

MR. GENTRY: All right. 

THE CHAIRMAN: Let the record speak for itself. 
Any further comment, question or motion with Section 1? 

MRS. BOTHE: Mr. Chairman. 

T HE C HA IRM AN : Mr s . Bo t he . • 

MRS. BOTHE: I have been sitting here debating 
whether to raise the issue. I think we ought to have a 
record on the matter, if nobody else raises it. 

This Committee had considerable discussion on 
the subject of whether amendments should be initiable by 
the people. As }'ou can see, we recommended against it 



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and left it to the General Assembly alone, for the initia- 
tion of amendments to the Constitution. We rejected it 
because we felt that it was unnecessary and that it had 
perhaps been abused in the thirteen States where it does 
exist. The model recommends it, and today I got some 
research from one of the people on the staff. 

We asked them to tell us what the results had 
been in the thirteen States where amendments could be 
initiated, and I received a tabulation today which I have 
only had an opportunity to skim through. 

I think we ought to make it a part of our re- 
port that it indicates that the use of the initiative has 
not been very widespread and that in many instances it 
has been used to propose rather absurd matters, such as 
whether to legalize bingo, and Mr. Delia will be interest- 
ed to know it has been used a number of times relative 
"to right-to-work laws successfully. 

THE CHAIRMAN: Is there any comment or question? 
Dr. Bard. 

DR. BARD: Just a brief one and that is, I would 
like it clarified for the record that we are referring 



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here to the Constitutional initiative, not the initiative 
in the broader sense. 

THE CHAIRMAN: You mean the initiative to put 
Constitutional amendments on the ballot? 

DR. BAPD: Right. 

THE CHAIRMAN: Dr. Michener. 

DR. MICHENER: Just a little light note on this. 
When I was in California, there was a Constitutional 
initiative which was adopted saying that Mrs. Williams 
would be the Director of the Department of Social Welfai 
It took a Constitutional amendment to get her out of office. 

THE CHAIRMAN: Any further discussion of this 
question? If not, we move to Section 2. 

MRS. BOTHE: Now, Section 2 deals with the 
calling of Constitutional Conventions and as proposed it 
reads, The General Assembly, by an affirmative record vote 
of three-fifths of the members, may at any time submit to 
the voters the question of the calling of a Constitutional 
Convention. If the question of calling a convention shall 
not have been si ted to a popular vote for a period of 
twenty years, then it shall be submitted at the next genera 



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election. In either case, a Convention shall be held 
within one year of the date of approval by a majority of 
the voters voting thereon. Within sixty days of such 
popular approval, the Governor shall appoint a Commis- 
sion to prepare proposals to lay before the Convention. 
At its next session following such vote, the General 
Assembly shall provide for the assembling of the Convent- 
ion, and the selection of its delegates. The Convention 
shall provide its own rules of procedure. Any proposals 
for changing the Constitution adopted by the Convention 
shall be submitted to the qualified voters of the State 
for ratification, and shall be effective only after 
approval by a majority of those voting thereon. 

As you can see, we tried to avoid a number of 
the pitfalls of the present Constitutional provision. We 
have eliminated the provision that the majority of those 
eligible to vote be required. We have called for a -- 
that the issue be placed on the ballot at least once 
every twenty years, and we have perpetuated a group such 
as ours into the Constitution itself and made mandatory 
the provision for a Convention when the voters approve of 



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one being held. 

THE CHAIRMAN: Dr. Burdette. 

DR. BUFDETTE: I wonder, Mr. Chairman, if I 
could get an interpretation or so about the language 
for the guidance, perhaps, of the Committee on Style 
and also now the intent of the Committee of what we are 
approving. 

I should presume that the Committee would be 
willing to accept on page 3 in the beginning, it is 
actually the second new sentence, In either case a Con- 
vention shall be held, that language preceding that 
should carry in the arrangement that if the people approve 
it. It literally says if you have a vote you shall also 
have a Convention, and I presume you mean that's the 
case if the popular vote is affirmative. 

MPS. BOTHE: Well, it reads as I read it, in 

m 

either case a Convention shall be held within one year 
of the date of approval. 

DR. BURDETTE: I beg your pardon, approval, oh, 
I beg your pardon, yes, you are quite right, but under 
the next one, does this Committee feel strongly -- well, 



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i this is not a matter for style, bat let me ask all 
; three questions. Within sixty days of such popular ap- 
proval, the Governor shall appoint a Commission to pre- 
:. pare proposals to lay before the Convention. I will 

give my own reaction to that as one that -- well, I guess 
I feel so strongly that people ought not to be the judges 
in their own cause, I am a little embarrassed to neces- 
sarily say this is a good idea. If the next Constitu- 
tional Convention thinks that we have been of service to 
them and such tremendous service that it would be desir- 

11 able to have such a Commission, it might go in, but if 

12 they think we were really pestiferous, then we have really 

13 put in language that is of self-service. 

14' MRS. BOTHE: Dr. Burdette, this wasn't our idea, 

15 however, the model preceded both the Commission and our 

16 inspiration. 

17 DR. BURDETTE: This has in it certainly inflexi- 

18 bility. 

19 Then going to the third one, At its next session 

20 following such vote, the General Assembly shall provide 

21 for the assembling of the Convention, and the selection 



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of its delegates. Now, I would read that to permit that, 
the General Assembly does not have to have an election 
of delegates but could provide that the Governor appoint 
them. Is that the intent of the Committee? 

MRS. BOTHE: Yes, well, the intent is to allow 
the General Assembly, as the General Assembly will be 
doing in its next session this time, to make provisions. 
The real purpose of it is to compel the General Assembly 
to construct the Convention, to provide the funds, to 
provide the means of election and not to face the possi- 
bility that it would ignore the mandate of the voters 
and simply not structure that which -- 

DR. BURDETTE: But this is, if you will pardon 
me, a very large question of policy, it seems to me, 
because if you are saying then that the Legislature 
could by Law provide another means of appointing it, 
this could open a situation wherein the Legislature could, 
in effect, defeat the will of the people, if you don't 
have some kind of popular representation in the election 
of the l\c ] es . 

MRS. BOTHE: Well, it is probably a policy 



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question. We discussed it. We used the word selection 
rather than election deliberately because we felt there 
should be a wide area of flexibility for the Legislature 
that would determine how delegates to the Convention were 
selected. We weren't certain that it would necessarily 
be advisable to always have popularly elected delegates. 

DR. MICHENER: Mr. Chairman. 

THE CHAIRMAN: Dr. Michener . 

DR. MICHENER: I wonder if this actually secures 
what you are after in saying that it forces the Legisla- 
ture to provide for the Convention? I can see in the 
future, if the issue were a unicameral Legislature and 
the Legislature itself didn't want it, they just refused 
to take action as happened in the past. Are you con- 
templating that this will be judicially enforceable. 
It doesn't say so, or the Governor, if they don't, the 
Governor could act for some means of Convention? As I 
read it now, it would be an obligation on the General 
Assembly but if they refused to honor it, I don't see what 
you would do about it . 

S. BOTHE: You would do the same thing as you 



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do in any instance -- 

DR. BURDETTE: The Court says you have a politi- 
cal remedy by electing somebody else next time. 

THE CHAIRMAN: The direct answer to your ques- 
tion is, there is no provision specifically providing 
for Court enforcement, is that correct? 

MRS . BOTHE : Tha t ' s cor rec t . 

DR. BURDETTE: Wouldn't it be desirable? 

MRS. BOTHE: Well, of course, the Court can't 
appropriate funds, and a mandamus against the Legisla- 
ture written into the Constitution would be a highly 
unconventional sort of thing. 

THE CHAIRMAN: Mr. Martineau. 

MR. MARTINEAU: I just wonder at the necessity 
for including the language, the sentence, The Convention 
shall provide its own,rules of procedure. I frankly 
would have thought that that would have been inherent. 
MRS. BOTHE: We had some discussion on that. 
Dr. Winslow might answer it better than I because he par- 
ticipated in the preparation of it. 

DR. WINSLOW: I don't think I can cite a case, 



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understand, as to whether this is the proper exercise 


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of legislative power . 




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Mr. Chairman. 


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THE CHAIRMAN: 


Judge Adkins . 


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Is there a motion on the floor? 


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1 JUDGE ADKINS: I would like to make one. In 

< the final sentence, this is a very minor one, I would 
; like to move that the words, adopted by the Convention, 
• be moved up after the word, proposals, so that it is clear 
5 that the sense is that any proposals adopted by the 

Convention for changing the Constitution shall be submitted 
As it now reads it seems to me that only proposals adopted 
for the purpose of changing the Constitution adopted by 
the Convention would be subject -- 

THE CHAIRMAN: Well, in the interest of saving 

11 time would the Committee accept the rearrangement? 

12 MRS. BOTHE: It is certainly the intention 

13 of the Committee. 

14 THE CHAIRMAN: In the absence of objection, 

15 the phrase, adopted by the Convention, in the last sentence 

16 is inserted after the words, any proposals. There is no 

17 objection, the change is made. 

Now, Judge Adkins, you said you had another one? 
JUDGE ADKINS: That's all. 
DR. BARD: Mr. Chairman. 
THE CHAIRMAN: Dr. Bard. 



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DR. BARD: I have another one along the same 
lines and that is the ninth line, page 3, voting thereon, 
as written seems to refer to general election. I am sure 
the Committee meant majority of the voters voting upon 
this specific subject. Now, perhaps that needs some 
clarification by the Committee on Style. 

THE CHAIRMAN: Yes, I think that's a Style 
Committee matter, but we do need to know the intent, and 
the intent is the majority voting on the question and not 
voting in the election. 

MR. MIMDEL: Mr. Chairman. 

THE CHAIRMAN: Mr. Mindel. 

MR. MINDEL: Why did the Committee allow only 
10 months for the work of the Convention? You talk about 
60 days, you have the appointment of a Commission, then 
the Convention is celled 10 months later? 

THE CHAIRMAN: Mrs. Bothe. 

MRS. BOTHE: We felt there ought to be a time 
limit and after some deliberation that this amount of time 
was sufficient. 

THE CHAIRMAN: And, obviously felt you could 



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get a Commission to v7ork faster than this one. 

MRS. BOTHE: Well, we may not have to wait a 
hundred years to revise it. 

MR. SAY RE: Mr. Chairman. 

THE CHAIRMAN: Mr. Say re. 

MR. SAYRE: There is nothing that precludes 
this type of Commission being created way in advance in 
any event as I understand it, and I therefore do agree 
with this. 

The one shortcoming I feel is that you almost 
restrict that Commission's efforts in preparing proposals. 
I would follow the model I think to assembling information 
because some of your proposals may be that no new amend- 
ment be made, and you marshall information to substantiate 
that, so I would add something like -- 

THE CHAIRMAN: Why wouldn't it be better to 
say simply to prepare for because we have ourselves under- 
taken to do much more then prepare proposals. As a mat tier 
of fact, the more important part of our work is going to 
be the research part of it. 

MRS. BOTHE: I think that would be acceptable. 



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I THE CHAIRMAN: To prepare for, so that you 
would strike out the words, proposals to lay before, and 

; insert the word, for. 

4 Any objection? If not, we will do that. 

MR. GENTRY: Mr. Chairman. 
THE CHAIRMAN: Mr. Gentry. 

MR. GENTRY: I have a clean-up change on Page 2 
three-fifths of the members of each House should be in 
there, I think. 
10 THE CHAIRMAN: I would take it, and I make this 

II statement for the benefit of the Committee on Style, that 

12 the first three lines of Section 2 would have to be 

13 rephrased to conform to the language that you have used 

14 in other cases, to make it clear that you are talking 

15 about three-fifths of the elected members and you don't 

16 refer to record vote, is that correct, Dr. Burdette? 

17 DR. BURDETTE: I think that is right. 

18 THE CHAIRMAN: Any further questions? Mr. Say re 

19 MR. SAYRE: Did the Committee give any consid- 

20 eration as to whether an amendment, the voting upon an 

21 amendment would be done by three-fifths of the two Houses 



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1 meeting jointly? 

: MRS. BOTHE: Ask that again, would you, Bill? 

; THE CHAIRMAN: Did you give consideration to 

a proposal that for purposes of proposing a Constitutional 
amendment the two Houses of the Legislature had to be in 
C joint session? 

MRS. BOTHE: No. 

MR. SAYRE: Would this be appropriate? 
9 THE CHAIRMAN: What? 

10 MR. SAYRE: To submit a motion? 

11 THE CHAIRMAN: Yes. 

12 MR. SAYRE: I would like to move that wherever 

13 we have the two Houses voting, that they will be voting 

14 jointly. 

15 THE CHAIRMAN: No\7 , are you talking about only 

16 in this? 

17 MR. SAYRE: In these two sections only. 

18 THE CHAIRMAN: These two sections? 

19 MR. SAYRE: These two sections only, yes. 

THE CHA .: All right, is there a second? 

The motion fails for lack of a second. Any further questic 



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on Section 2? Mr. Haile. 



MR. HAILE: I think in the fourth line it 



reads -- 



THE CHAIRMAN: The fourth line on Page 3? 

MR. HAILE: On Page 3, submitted to a popular 
vote for a period of 20 years. I think we mean to say 
for any period of 20 years because this is a perpetual 
thing every 20 years . 

THE CHAIRMAN: Yes, I would anticipate that 
they were not requiring an election to continue for 20 
years, so that would be referred to the Committee on Style, 
Mr. Miller. 

MR. MILLER: If, just to clarify that, if there 
had been such a vote by -- under one of the other pro- 
visions, would that mean you could have it on the ballot 
for a period of any time thereafter without 20 years 
having elapsed? It seems to me that there might be an 
indefinite -- suppose you have a Constitutional Convention, 
or suppose there is a vote and it turns down a Constitu- 
tional Convention, would you have to wait, or could you 
put it on the ballot the very next year if there hadn't 



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I been a Convention then for 21 years or 24? 

THE CHAIRMAN: I take it that the Committee 

; means the Legislature can put it on the ballot every year 
' if it wants to but it must put it on at least once every 

20 years. Is that the intent of the Committee? 
: MRS. BOTHE: Yes. 

MR. MILLER: If they put it on and it fails 
they don't have to put it on for another 20 years? 

THE CHAIRMAN: They may but do not have to. 
10 ' MRS. BOTHE: Which for the record I might say 

II here again there was discussion on initiative of 

12 Constitutional Conventions and the Committee felt that 

13 in view of the 20-year provision that it would be unneces- 

14 sary and probably unwise to make any initiative provision 

15 for placing the question on the ballot. 

16 THE CHAIRMAN: Any question as to that? If not 

17 I had one other question for the benefit of the Committee 

18 on Style. 

19 I note in the last sentence that you use the 

20 words, changing the Constitution, whereas in the present 

21 Constitution the phrase is, altering the Constitution. 



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1 Is there any significance to the change or is 

this something that the Committee on Style could change? 
; MRS. BOTIIE: No, we thought the word was better 

4 chosen but they can change it back. 

5 THE CHAIRMAN: All right, or any similar word. 

6 There is no particular significance to the word you chose? 

7 MRS. BOTHE: Well, we felt it best, we didn't 

8 want to use the words provisions or amendments for altera- 

9 tion. 

10 THE CHAIRMAN: Right. Any further question as 

11 to the subject of this report at all dealing with the 

12 Amendment of the Constitution? If not, we will proceed 

13 to a consideration of the Eighth Report of the Committee 

14 on Miscellaneous Provisions. That's the one dated 

15 December 3rd handed to you this morning. Mrs. Bothe. 

16 MRS. BOTHE: The Eighth Report deals with 

17 Article IV, Section 13, and Article XV, Section 11. 

18 Starting with Article IV, Section 13, Form for Commissions 

19 and Grants. It now provides that, All Public Commissions 

20 and Grants shall run thus: The State of Maryland, et cete-ja, 

21 and shall be signed by the Governor, with the Seal of the 



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State annexed; all writs and process shall run in the same 
style, and be tested, sealed and signed, as heretofore, 
or as may hereinafter be, provided by Law; and all indict- 
ments shall conclude, against the peace, government and 

! dignity of the State. 

6 This language is actually used as some of us 

corns upon. I understand writs actually do start out, The 
State of Maryland, et cetera, and as those of us who 
handle criminal cases know, all indictments still conclude 

10 against the peace, government and dignity of the State. 

11 The one time the Court had occasion to construe 

12 this section it was held that an indictment which did not 

13 contain that magic phrase was unconstitutional and the 

14 defendant presumable went free. It has never othen-7J.se 

15 been the subject of litigation. 

16 The Committee's first impulse was to say that 

17 this provision did not require inclusion in the Constitu- 

18 tion but then we looked in the Blue Book of State Consti- 
tutions and took note that it is almost universally 
included in the Constitutions of other states. Whether 
we thought so or not, it seems that the wise people around 



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1 the Nation feel it important to say in the Constitution 

c what the language of a writ shall contain when issued by 

:; the State. 

4 We did not feel it necessary to put the language 

5 of indictments in the Constitution. That seems not to be 
G done with any frequency. It can be the subject of statute, 

and I believe in Article, somewhere in Article XXVII is. 
We therefore propose to leave in a provision 

9 dealing with the subject but to modernize it and clean 

10 it up, and our proposal appears on Page 3 of the Report 

11 and reads, All public commissions and grants shall be 

12 signed by the Governor with the Seal of the State annexed. 

13 THE CHAIRMAN: Any question? Any comment? 

14 MR. GENTRY: Mr. Chairman. 

15 THE CHAIRMAN: Mr. Gentry. 

16 MR. GENTRY: I was on the Committee and objected 

17 to the phrasing, commissions and grants. While I suspected 

18 the word grant means deed, I am not completely sure in my 
If own mind that that is what it does mean, and commissions, 
2( if commissions cover everything from notaries public forward, 
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1 Article with a directive that the Governor must spend all 

2 his time signing every commission that comes down -- comes 

3 along the line. 

4 I would suggest and move that this be deleted 

5 completely. 

6 JUDGE ADKINS: I second that motion. 

7 THE CHAIRMAN: Any discussion? Mrs. Bothe? 

8 MRS. BOTHE: I wouldn't oppose the motion. As 

9 I said, I think our main impetus was derived from the fact 

10 that 34 other states besides this one do in their Consti- 

11 tutions provide some kind of form for public commissions, 

12 and if the Commission, this Commission wants to be in a 

13 minority I will be inclined to agree it is superfluous. 

14 THE CHAIRMAN: Are you ready for the question? 

15 The question arises on the motion to delete entirely the 

16 proposed new section as it appears on Page 3 of the 

17 Committee Report. 

18 All those in favor of the motion signify by 

19 saying aye. Contrary, no. The motion is carried unani- 

20 mously. 

21 MR. CLAGETT: Mr. Chairman, off the record for 



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1 a moment . 

2 (Discussion off the record followed.) 

3 MRS. BOTHE: Mr. Chairman, do I take it that 

4 this vote is to the effect that the new -- we do not 

5 recommend any provision in the new Constitution regarding 

6 the form of grants, commissions or the like? 

7 THE CHAIRMAN: I take it that the meaning of 

8 the vote is that the recommendation of the Commission is 

9 that the Constitution not contain any such provision. 

10 MR. MILLER: Mr. Chairman. 

11 THE CHAIRMAN: Mr. Miller. 

12 MR. MILLER: Just to bring that to a head so 

13 they will know for the record, and I am not going to 

14 advocate the motion, but I move that we substitute a 

15 provision that documents of that sort shall be as provided- 

16 shall be executed as provided by law. 

17 THE CHAIRMAN: Well, I would rule that that is 
1G the equivalent of the motion that was just adopted, or the 

19 reverse of it. 

20 I think what you meant to say was that you would 

21 move that the recommendation of the Commission be that there 



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1 be no provision in the Constitution with respect to -- 

2 MR. MILLER: No, that there be a provision 

3 in the Constitution but that it states that the Commission; 

4 shall be formalized, or whatever it is, as provided by law. 

5 THE CHAIRMAN: Oh, I am sorry, sir, I didn't 

6 follow you. 

7 MR. MILLER: Just so there wouldn't be a hiatus. 

8 That is just a suggestion. I am not too much in favor of 

9 it . I just think it ought to be on the record that we 

10 didn't pass it by. 

11 THE CHAIRMAN: Is there a second? 

12 MR. CLAGETT: I will second it. 

13 THE CHAIRMAN: Any discussion? Mr. Gentry. 

14 MR. GENTRY: Yes, I would hope to vote against 

15 it because that is unnecessary. The Legislature certainly 

16 now has that power to do it with or without some sort of 

17 a directive. 

18 MR. MILLER: I would think so too, but I would 

19 rather havs it voted down and have them know we didn't 

20 miss it, that's all. 

21 THE CHAIRMAN: Are you ready for the question? 



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1 The question arises on the motion that the Commission 

2 recommend a provision which would provide that all public 

3 commissions and grants shall be signed in such manner as 

4 shall be provided by law. All those in favor signify -- 

5 MR, SAYRE: I understand this will not go into 

6 the Constitution? 

7 MR. MILLER: It would. 

8 THE CHAIRMAN: It would. 

9 MR. MILLER: If you vote for it. 

10 MR. HARGROVE: It would if you vote for it. 

11 THE CHAIRMAN: If you vote for it. All those 

12 in favor signify by saying aye. Contrary, no. The motion 

13 is unanimously lost. 

14 Now, Article XV, Section 11. 

15 MRS. BOTHE: Perhaps we won't get through this 

16 one quite as fast. 

17 Article XV, Section 11 is the so-called sub- 

18 versive activity section of the Constitution which was 

19 enacted in 1948 in response to the feelings of the people 

20 at that time. 

It reads, No person who is a member of an 



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1 organization that advocates the overthrow of the Govern- 

2 ment of the United States or of the State of Maryland 

3 through force or violence shall be eligible to hold any 

4 office, be it elective or appointive, or any other positioiji 

5 of profit or trust in the Government of or in the adminis- 

6 tration of the business of this State or of any county, 

7 municipality or other political subdivision of this State. 

8 This Constitutional enactment was followed by 

9 the so-called Ober Law which is Article 88Aof the Code -- 

10 85A of the Code and which makes various provisions 

11 implementing it so as to make certain that persons who 

12 advocate the overthrow of the Government, et cetera, are 

13 not in positions of trust or working for the State Govern- 

14 ment in any capacity. 

15 Only four other states, and I believe all of 

16 them during the same period of time, have enacted similar 

17 Constitutional provisions. A number of states have laws 
11 similar to the Ober Law. 

] 9 The Committee as a matter of policy as to 

? whether or not the Constitution need contain this kind of 

• prohibition feels that it is a question for the Commission 



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1 rather than the Committee because it is a matter more 

2 of opinion some people say of a position than of Consti- 

3 tutional craftsmanship. 

4 The only pause that we had, or the only researcb 

5 question that arose under it was what the effect of the 

6 deletion of Article XV, which we recommend, would have 

7 on Article 85A. The two were passed almost contempora- 

8 neously. 

9 We were not able to discover, and I don't 

10 believe there is any background to the reason why it was 

11 felt necessary to enact the Constitutional Amendment in 

12 order to put into play a subversive activities lav;. 

13 Apparently the feeling at the time was that 

14 this was such a burning issue that it belonged in the basic 

15 document of the State. 

16 The only practical effect that the deletion 

17 might have would be because of a possible conflict with 

18 Article 37 of the present Declaration of Rights which 

19 states that no other oath than the Constitutional oath 

20 shall be prescribed. 

21 You might recall that the oath which the 



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Miscellaneous Provisions Committee recommended to the 
Commission and which was adopted by it also contains a 
provision that no other oaths shall be prescribed, so 
presumably the new Constitution would have an equivalent 
section, would have an equivalent phrase which might 
conceivably be in conflict with the existing Ober Act, in 
the absence of Article XV, Section 11, or its equivalent. 

I believe -- were copies of Lasson's paper 
given out? 

THE CHAIRMAN: Yes. 

MRS. BOTHE: You have it before you. I suppose 
it having been distributed only today -- 

THE CHAIRMAN: No, no, this was distributed 
quite a long time ago. 

MRS. BOTHE: I would hope then that the members 
of the Commission have had an opportunity to look over this 
memorandum prepared by Mr. Kenneth Lasson on the subject 
as to whether the deletion of Article XV, Section 11 would 
replace the oath provisions of Article 85A in conflict 
with the Constitution. 

The answer is not in the memorandum or anywhere 



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1 else. However, Mr. Lasson and I believe also Mr. Noonberg 

2 as recently as yesterday consulted with the present 

3 Attorney General who not only is the Attorney General, 

4 but happens himself, I happen to know, to have been 

5 involved in a great deal of the litigation over the Ober 

6 Bill and is quite conversant with it. He was of the 

7 opinion that there would be no conflict and that if the 

8 contents of Section 11 were deleted from the Constitution 

9 that the Ober Bill could still stand. 

10 It is, incidentally, under challenge in the 

11 courts right now but not on the basis of any conflict 

12 with the State Constitution. 

13 THE CHAIRMAN: You mean the whole Ober Act, not 

14 this point? 

15 MRS. BOTHE: The whole Ober Act is being tested 

16 as a violation of the Federal Constitution. 

17 The question of whether the affirmation or 

18 statements required by the Ober Act are in conflict with 

19 the Maryland Constitution was raised in a case called 
'•- Shub versus Simpson, is it, and there the Courts sidesteppc 
31 it because in that instance the plaintiff desired to file 



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1 for office rather than to accept an appointment to a 

2 position in the State, so while it was raised in that case 

3 it wasn't actually decided and never has been. 

4 THE CHAIRMAN: Any questions? Mr. Case. 

5 MR. CASE: Mr. Chairman, this proposal gives 

6 me a lot of concern for several reasons. 

7 One is, of course, we did not get the Report 

8 of the Committee until this morning, at least I didn't get 

9 the Report of the Committee until this morning, which 

10 recommends that the provision in Article XV, Section 11 

11 be deleted, and I think that a great many people will be 

12 watching very carefully the action of the Commission with 

13 respect to this particular item. 

14 Certainly no item or issue has been debated 

15 quite as much both up and down as the Ober Law and the 

16 question of its desirability or its sufficiency in the last 

17 decade. 

18 I note that by a hasty count, and with 

19 Congressman Miller leaving the room right now -- I am not 

20 going to talk about you, Congressman -- I am just saying 

21 you are leaving. 



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MR. MILLER: I am against communism. I will 
abide by your decision. 

MR. CASE: All right. I note that there are 
now 10 members who are absent from this hearing -- from 
this meeting, out of a total of 27 on our Commission. 

I also understand that at the next meeting it 
is hoped that there will be a unanimous or almost unanimous 
meeting of the Commission so that they can have their 
picture taken. 

I think it would be, because of the importance 
of this matter, namely the vote on the inclusion or 
deletion of the provisions relating to the Ober Law (and 
not having a picture taken), because it is so important 
and because I think that all of the members of the Com- 
mission should be here, as many as can be here to hear 
the debate, I would move, Mr. Chairman, that the considera 
tion by the Commission of this item be deferred, and be 
made a special order of business at our December 19th 



meeting. 



THE CHAIRMAN: Is there a second? 



JUDGE ADKIMS: I will second the motion 



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THE CHAIRMAN: Let me ask a question before 
putting this motion. Mr. Noonberg, do you know from your 
conversation with General Murphy whether there is any 
prospect that the pending case will be decided between 
now and the 19th? 

MRS. BOTHE: I can answer that because I am 
one of the counsel on the case. 

THE CHAIRMAN: Can you? 

MRS. BOTHE: No. 

THE CHAIRMAN: There is no possibility? 

MRS. BOTHE: No. You see, now, the jurisdictior 
al statement was just submitted and the State hasn't even 
answered it yet so -- 

THE CHAIRMAN: Let me ask one other question. 
I take it that the Committee's concern here is solely with 
whether a provision such as this shall be in or not in 
rather than with the particular language? 

MRS. BOTHE: That's correct. It is really a 

philosophical matter rather than any other — 

THE CHAIRMAN: All right, so that to delay 
not 
action until the 19th is/going to involve further 



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consideration of language if the Commission should decide 
to retain the provision. 

MRS. BOTHE: V7e have, of course, recommended 
its deletion. Now, if the Commission should decide other- 
wise, I would think perhaps the language might be subject 
to review by the Commission and perhaps first by the 
Committee . 

I feel in trying to read the language just a 
few minutes ago, I would think Dr. Burdette was wincing 
maybe at my reading rather that at the words 1 had to 
read, but it is very, in my opinion, clumsy and badly 
expressed; if the sentiment is a good one it could be 
expressed better. 

THE CHAIRMAN: All right. Dr. Temnleton. 

DR. TEMPLETON: Mr. Chairman, before any vote 
is closed I would like Mr. Case to clear his language on 
this motion. If I heard him correctly -- well, forgive 
me, what was the motion? 

THE CHAIRMAN: The motion was simply to defer 
further consideration of this section until the next 
meeting of the Commission. 



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1 DR. TEMPLETON: Well, I thought I heard Mr. Case 

2 include Ober Law in his motion. It is not acting on the 

3 Ober Law? 

4 THE CHAIRMAN: No. 

5 MR. CASE: Let me clarify it. 

6 DR. TEMPLETON: I would appreciate it. 

7 MR. CASE: What I am saying is I think a 

8 favorable vote on the Committee's recommendation, and I 

9 really don't know how I would vote on it, could easily be 

10 construed as a recommendation by this Commission against 

11 the provisions of the Ober Law, and because even though 

12 the Committee does say that they think as a practical 

13 matter through the mechanism of the oath-taking that the 

14 substance would be preserved, this is a very tough concept 

15 to put across, and I think that it is so vital that a full- 

16 the full Commission ought to be here to vote on it. We hav 

17 here today 40 per cent absent. 

18 DR. TEMPLETON: Yes. 

19 MR. CASE: And I think that this ought to be 

20 deferred until we have a, really a representative group. 

21 THE CHAIRMAN: Dr. Jenkins. 



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1 DR. JENKINS: My second was not concerned at 

2 all with the Ober Law but rather on the last statement of 

3 Mr. Case. It is an important issue and one on which I 

4 think we should have as many members of the Commission 

5 present as possible. I think it is unfortunate that he 

6 brought the Ober Lav/ point in this motion. 

7 THE CHAIRMAN: Any further discussion? Mrs.Bothe 

8 MRS. BOTHE: If I may speak to that, I was 

9 wondering whether the attendance at the December 19th 

10 meeting would necessarily be so much more complete than 

11 this? I for one will probably be unable to attend because 

12 of the proximity of the Christmas holidays and some plans 

13 I have then. I think I may not be the only member of the 

14 Commission caught up with the holidays. 

15 THE CHAIRMAN: Let me say this, every effort 

16 is going to be made to have the attendance at the next 

17 meeting as near to 100 per cent as possible, even if it 
1& is necessary that we get another date. It is very importar 
19 that we get all the members present if possible, or as 
'c nearly as many as we can. 
21 MRS. BOTHE: All of these things, unless it does 



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1 occur that nearly a hundred per cent is present, will 

2 become a numbers game situation. Perhaps I am speaking 

3 only from my selfish view of wanting to have an opportunity 

4 to vote on this issue. 

5 THE CHAIRMAN: Any further discussion? Are you 

6 ready for the question? 

7 The question arises on the motion to defer 

8 further consideration by the Commission of the retention 

9 or deletion of Article XV, Section 11 until the next 

10 meeting of the Commission and that it be then made a 

11 special order of business. 

12 All in favor signify by saying aye. Contrary, 

13 no. 

14 I think the ayes have it, but we will take a 

15 show of hands. 

16 All in favor signify by a show of hands. 

17 

i: THE CHAIRMAN: Contrary? 

MR. BROOKS: 3. 

20 THE CHAIRMAN: A vociferous 3. The motion 

21 carries 12 to 3. 



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1 I think that then would conclude consideration 

2 of the Eighth Report of the Committee on Miscellaneous 

3 Provisions. 

4 The next item is the consideration of the 

5 Seventh Report of the Committee on the Executive Department . 

6 Judge Adkins . 

7 JUDGE ADKINS: Mr. Chairman, by way of a pre- 

8 liminary apology, I suppose, may I say, that this Report 

in its 

9 has not been/textural form presented to my Committee. 

10 The reason for that is the fact that we received it on 

11 Wednesday of this week and there has not been time to have 

12 a Committee meeting since. 

13 The substance of the Report, however, has been 

14 discussed at the Committee level. Indeed it was -- the 

15 recommendations contained in this Report have been inherent 

16 in other recommendations which v;e have made, and in our 

17 Sixth Report which was in essence a draft of the entire 

18 Executive Article, which made no reference to the Eonrd 

19 of Public Works. 

20 Certain comments, however, have been made since 

21 which seem to make it desirable to have this matter" 



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1 presented as a definitive position, and that is the reason 

2 why we are here with this Report. 

3 Basically, we are recommending that the Consti- 

4 tution contain no further reference to the Board of Public 

5 Works. 

6 The Board of Public Works in its origin, as 

7 set forth in the report itself, arose originally in the 

8 Constitution of 1851, re-enacted in the Constitution of 

9 1867. 

10 The powers of the Board as they -- as it is now 

11 constituted are basically statutory and not constitutional, 

12 Reference to the Constitution currently gives the Board 

13 only powers which by this time have in essence become 

14 obsolete. If it is desired thr.t the powers which the 

15 Board currently hold continue to be exercised, we think 

16 that that can be done by Legislative enactment without the 

17 necessity of Constitutional sanctions. 

18 We have earlier recommended and this Commission 

19 has approved the elimination of both the Attorney General 

20 and the Comptroller as elected officers. 

21 I understand that some question may arise at 



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1 this meeting relative to a reconsideration of one or both 

2 of those recommendations, but for the moment assuming that 

3 those recommendations are to hold, there seems to be no 

4 logical reason why the Board of Public Works need to be 

5 an inherent part of the Constitution. We think it is 

6 contrary to the whole concept, the whole underlying 

7 philosophy of the Executive Article which is basically 

8 to create a strong Executive to the extent that you hedge 

9 him around with the necessity of having his decisions 

10 subject to review by other officials of the State Govern- 

11 ment. To that extent you are weakening the underlying 

12 philosophy which we have heretofore adopted. 

13 I think that if you haven't had a chance to 

14 read the Report, you have seen basically the position that 

15 we are taking in the matter. We therefore recommend that 

16 the Board of Public Works be eliminated from the Consti- 

17 tution. 

18 This is not to say that the Board of Public 

19 Works itself need necessary be abolished. If the Legis- 

20 lature in its wisdom thinks there is a proper place for 

21 such a body, it is certainly free to continue it as such. 



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1 THE CHAIRMAN: Any questions? Any comments? 

2 Any motion? If not, the recommendation of the Committee 

3 would stand. 

4 Nov?, Judge Adkins , I understand that by an 

5 informal arrangement there is to be a motion for recon- 

6 sideration of the previous action of the Commission with 

7 respect to one of the recommendations of your Committee. 

8 JUDGE ADKINS: I understand there was to be 

9 such a motion. The Chairman of the Committee is not going 

10 to make the motion but v;e will not object to it if the 

11 motion is made. 

12 THE CHAIRMAN: Mr. Case. 

13 MR. CASE: Well, I will, to get the matter on 

14 the floor, I will move -- may I ask a question first? 

15 THE CHAIRMAN: Yes, sir. 

16 MR. CASE: I want to move that this matter be 

17 reconsidered, but I understand under our rules that this 

18 is not subject to debate. 

19 THE CHAIRMAN: That is correct. 

20 MR. CASE: Would it be in order to explain to 

21 the members here the background of this motion before I 



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1 make the motion? 

2 THE CHAIRMAN: I think it would be desirable. 

3 Do it before you make the motion. 

4 MR. CASE: Before I make the motion, all right. 

5 The Committee on Taxation and Finance has one 

6 piece of business remaining to bring to the attention of 

7 the Commission and that is whether or not there should be 

8 some Constitutional provision relating to what I call, for 

9 the lack of a better way of describing it, the flow of the 

10 State funds. 

11 We have adopted previously, as you all know, 

12 a rather elaborate budget provision which deals with how 

13 State monies go out after they have been collected, how 

14 they are disbursed, under what rules, and so on and so 

15 forth, but there has not been a recommendation yet as to 

16 what if anything the Constitution should say about how 

17 the money comes in, other than, of course, the fact that 
lc it comes in through taxes, fees and so on, but should 
1 there be a department which administers the collection 
i of revenues? Should there be a, one person, a Treasurer, 

a Comptroller or so on who has this obligation and who is 



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Constitutionally responsible for the receipt of revenue? 

Now, this is a problem which is still being 
discussed by our Committee. To get an insight into the 
current functions of the State Government, we, our Com- 
mittee, along with Dale Adkins' Committee jointly met 
with Comptroller Goldstein to discuss this facet of the 
State Government. 

Actually, from the standpoint of my Committee's 
reference, we were interested solely in the subject that 
I have discussed, but Comptroller Goldstein took the 
occasion of that hearing to present a very elaborate 
defense of his office and a very elaborate defense of the 
proposition that the Comptroller should remain an elected 
officer and should remain a Constitutional officer. 

He qualified that after some discussion and 
examination by saying that he didn't care whether it was 
a Comptroller, whether you called him a Comptroller, or a 
Treasurer, or by any other name, but there ought to be 
some one person responsible directly to the people who 
would bo in charge of the, generally in charge of the 
collection of State revenues and all of the things that 



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1 go with that kind of an assignment. 

2 In view of the fact, and this implies no 

3 criticism on the Committee on Executive Affairs, but it 

4 is true, and I think it should be stated in view of the 

5 fact that Comptroller Goldstein had not been interviewed 

6 by that Committee at the time when it made its recommenda- 

7 tion that the Comptroller -- the office of Comptroller be 

8 deleted from the Constitution, it has been agreed between 

9 the Chairman of that Committee, Judge Adkins , and myself, 
10 that I would offer and he would second a motion that that 
H particular matter be reconsidered by the Commission. 

12 THE CHAIRMAN: You now so move? 

13 MR. CASE: And I now so move. 

14 THE CHAIRMAN: Is there a second? 

15 DR. BARD: Seconded. 

16 THE CHAIRMAN: The motion is not debatable. 

17 The question arises on the motion to reconsider 

18 the previous action of this Commission that the Constitutio 

19 provide that the office of Comptroller be an appointive 

20 rather than an elective office. A vote aye is a vote in 
; favor of reconsideration, it is not a vote on the substantive 



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question. Mr. Delia. 

MR. DELLA: Just one question. Would this be 
just for the Comptroller's position and not the Attorney 
General? 



THE CHAIRMAN: That's correct. Any further 



discussion? 

JUDGE ADKINS: Is discussion in order? 

THE CHAIRMAN: I am sorry. Are you ready for 
the question? A vote aye is a vote in favor of recon- 
sideration, it is not a vote on the substantive question. 
All in favor of reconsideration signify by saying aye. 
Contrary, no. 

I V7ill have to take a show of hands. All in 
favor signify by a show of hands. 

MR. BROOKS: 11. 

THE CHAIRMAN: Contrary. 

MR. BROOKS: 4. 

THE CHAIRMAN: The motion is carried 11 to 4. 

Now, Judge Adkins, the master is before us 
again on a reconsideration of the recommendation of your 
Committee. You have the floor. 



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I JUDGE ADKINS: Mr. Chairman, I voted in favor 
c of reconsideration for the reasons which Mr. Case stated, 
3 to wit, that our Committee did not have the benefit of 

Senator Goldstein's views at the time that we made our 

5 original recommendation. Having had the benefit of those 

C views, our position, I think, remains unchanged. 

I did, however, feel that in view of the fact 

that he had presented a statement both to the joint Com- 

9 mittees on Finance and the Executive, and also had presented 

10 a written statement to this Commission, that the matter 

II should be at least revoted on in the light of all the 

12 evidence. 

13 I would like for the moment to direct myself 

14 to his memorandum, in view of the fact that I think it is 

15 fair to say that the Committee's position is unchanged. 

16 Wo do not feel that there is evidence submitted here which 

17 is in any sense new in terms of the consideration which 

18 was given by us to this problem. 

19 We did have the benefit of hearing from Governor 
• Tawes who has served this State as Comptroller for more 
21 years than any other single individual, and his views were 



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1 quite firm that the office of Comptroller need not and 

2 indeed should not be an elected official. We also had 

3 similar views from former Governor Lane and former 

4 Governor McKeldin. The recommendations of the Sobeloff- 

5 Stockbridge Commission soma 15 years ago recommended that 

6 the office of the Comptroller should not be an elected 

7 office. The model Constitution makes no reference to 

8 any elective office of this nature. 

9 With the exception of Senator Goldstein's 

10 position, we have had no evidence presented to us which 

11 indicates the desirability of continuing it as an elected 

12 office. In his memorandum he makes three basic points 

13 which are articulate but in our opinion not persuasive. 

14 First of all, he points out that the Comptroller 

15 is a member of the Board of Public Works and hence acts as 

16 a check to perhaps an arbitrary governor. With the action 

17 of this --. 

1C MR. CASE: May I interrupt you? 

; ; JUDGE ADKINS: Yes. 

1 THE CHAIRMAN: I think the record will be better 

would 

21 if you /do it Later. 



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1 MR. CASE: I was going to suggest in deference 

2 to Senator Goldstein and rather than have the charge made 

3 that he V7as in any way misrepresented, that somebody, 

4 maybe Mr. Brooks, read the memorandum to the Commission. 

5 It is not very long. 

6 THE CHAIRMAN: I think it was circulated to 

7 every member of the Commission, Mr. Case. 

8 MR. MARTINEAU: No. 

9 THE CHAIRMAN: All right. 

10 JUDGE ADKIN5: It was not? I thought it had 

11 been. 

12 MR. BROOKS: Do you want it read? 

13 THE CHAIRMAN: Do you want to read it, Judge 

14 Adkins, or do you want Mr. Brooks to? 

15 . MR. CASE: I think it should be read. 

16 JUDGE ADKINS: Well, I will be glad to read it. 

17 "The Office of Comptroller of the Treasury was 

18 originally created by the Constitution of 1851 (Article 6, 

19 Section 1). The Comptroller is now chosen by the qualified 

20 electors of the State for a term of four years. The 
Comptroller and the Treasurer constitute the Treasury 



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Department of the State but it is significant to note that 
while the Comptroller was made an elected officer of the 
State, the office of Treasurer was made one to be appointee 1 

4 by the two Houses of the Legislature. 

5 "Here we find action on the part of the 

6 Constitutional Conventions of 1851 and 1867 to establish 

7 a system of checks and balances, with the Comptroller 

8 responsible to the people who form the electorate and the 

9 Treasurer to the General Assembly. We believe that the 

10 drafters of the 1851 and 1867 Constitutions acted wisely 

11 in establishing these checks and balances. We believe 

12 that it was important in 1851 and 1867 and we feel that it 

13 is even more important today. We do not feel that the 

14 Governor should be given the power to appoint the Comp- 

15 troller for, in so doing, the system of checks and balances 

16 we now have could be destroyed. 

17 "The person who runs for Comptroller today is 

18 aspiring to a most important office and, in so doing, he 

19 subjects himself to the close scrutiny of the voters. 

20 Thus, one who is elected Comptroller today must have a 
great degree of capability and fiscal responsibility and, 



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above all, he must devote all of his time to the job if he 
is to be successful and meet the approval of those who 
elected him to the office. 

"An appointee of the Governor may not meet these 
qualifications and the office could revert to one where the 
appointee was the Comptroller in name only, with policies 
and decisions handed down to him by the Chief Executive in 
power. 

"Over the years, the duties of the Comptroller 
have greatly increased over those as originally set forth 
in Article 6, and now encompass the collection of the 
major portion of the State's tax revenue. This assignment, 
plus many others, by the Legislature to the Comptroller 
shows their confidence in the present system. 

"THE BOARD OF PUBLIC WORKS: The Comptroller is 
a member of the Board of Public Works, the other two member 
being the Governor and the State Treasurer. This Board 
exercises supervision over all public works . It acquires 
land for public use, awards contracts, sells State bonds, 
and performs other functions necessary to the operation of 
the State. As you can see, grave responsibilities are 



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placed on the Board of Public Works, which is composed 

c- of three independently elected officials, with the 

Governor and the Comptroller being directly responsible 

4 to the people, and the Treasurer to the Legislature. If the 

5 Governor is to appoint both of these officials, the Board 

6 of Public Works will be emasculated as an effective policy 

7 making body, since all decisions will be those of one man, 

8 the Governor. 

9 "THE BOARD OF REVENUE ESTIMATES: The Board of 

10 Revenue Estimates consists of the Budget Director, an 

11 appointee of the Governor; the State Treasurer, who is 

12 elected by the Legislature; and the Comptroller, who is 

13 elected by the people. This Board is responsible for the 

14 estimating of the State's Revenues, in accordance with 

15 Article 41, Section 194, of the Annotated Code of Maryland 

16 (1957 Edition). This Board acts as an independent body 

17 and its estimates are made without reference to the budget | 

18 requirements for the next fiscal year. 

19 "Under our present constitution, Maryland must 

20 have a balanced budget and this provision should be con- 

21 tinued in the new constitution, as it has proved sound for 



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1 the past fifty years and has kept the State in Sound 

2 financial condition. It would appear obvious that a Board 

3 of Revenue Estimates, with an independent system of revenu^ 

4 estimating, will be necessary under any constitution, but 

5 the only way independent estimates can be made is to have 

6 people on the Board who are free to exercise their own 

7 independent judgment and not be influenced by the budgetary 

8 requirements. 

9 "Experience has shown that had the Board of 

10 Revenue Estimates not exercised independent judgment in 

11 the past in the formation of realistic estimates, deficits 

12 would have resulted and the State would have found itself 

13 in financial difficulties. As a result of realistic 

14 revenue, estimates, it has been necessary for the Chief 

15 Executive at times to face up promptly to the need for 

16 new tax sources in order to present a balanced budget. 

17 "A Governor running for re-election might be 

18 tempted, with a controlled Board of Revenue Estimates, to 

19 hold off a tax increase by balancing his budget on psper, 

20 which might result in a deficit for the next administration 

21 "STATE RETIREMENT SYSTEMS: The incumbent 



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Comptroller is Chairman of the Board of Trustees of the 
State Employees' Retirement System, Vice-Chairman of the 
Board of Trustees of the State Teachers' Retirement System 
and a member of the Board of Trustees of the State Police 
Retirement System. 

"These systems administer the retirement funds 
and pension funds of State employees, teachers and police. 
These funds, which now total approximately $460,000,000.00 
represent contributions from the salaries of dedicated 
State employees, with matching funds from the State, and 
must be held safe and secure. The incumbent Comptroller 
has instituted a diversified program for the investment 
of these funds, in F.H.A. mortgages, ground rents, 
corporate bonds, common stock, et cetera, which investment t. 
are now yielding 4.3 per cent interest. 

"It is important that a person of independent 
judgment be a member of these Retirement Boards in order 
that the Retirement Systems of our State may continue to 
remain in sound financial condition. 

"FINANCIAL REPORTS: Upon the assumption of 
office, the incumbent Comptroller adopted an 'open door' 



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1 policy with respect to financial information. He has kept 

2 the public fully informed as to the financial affairs of 

3 the State. Under an appointed Comptroller, it is possible 

4 that certain financial information could be withheld if 

5 such information might be embarrassing to the Governor. 

6 Past experience has proven that the Comptroller has 

7 released to the people of Maryland financial information 

8 beneficial to them. 

9 "We see no necessity for giving the Governor 

10 full control over the fiscal affairs of the State. As a 

11 matter of fact, to do so necessarily presupposes a high 

12 degree of fiscal responsibility in candidates for Governor, 

13 and we all know that such is not always the case. If the 

14 Governor is free to act in fiscal matters without any 

15 person otherwise responsible to the public acting in the 

16 capacity of a fiscal watch dog, an irresponsible Governor 

17 in one term of office could place the State in an adverse 

18 financial, position from which it might take many years to 

19 recover. 

20 "It seems to me that there is a necessity for a 

21 system of checks and balances within the Executive Branch 



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of government and that the present system should be con- 
tinued, with an elected Comptroller." 

That concludes the statement of Mr. Goldstein. 

MR. GENTRY: You didn't read the last line, 
God bless you all real good. 

THE CHAIRMAN: That was delivered orally. 

JUDGE ADKINS: Now, it does not seem to -- well, 
let me say to me rather than us, because the Committee 
itself has not acted, has not met since this statement 
was presented. It does not seem to me, however, that ther£ 
is any substantial new evidence here that was not before 
our Committee at the time we made the original recommenda- 
tion and at the time this Commission adopted our Report 
rather overwhelmingly, I believe, as far as the Board of 
Public Works, as I started to say earlier. Ue have now 
by the adoption of the paper which we presented fifteen 
minutes ago, recommended that the Board of Public Works 
no longer be a Constitutional body and hence the Comptroller's 
membership in that Board may or may not be significant here- 
after. 

He refers to the Board of Revenue Estimates. 



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I think there is certainly merit in having an independent 
Board of Revenue Estimates. Whether that is achieved by 
having an elected Comptroller I think is a matter perhaps 
for some caveat. 

The State Retirement Systems to which he 
refers are again highly significant. Again, I do not 
see the necessity for having an elected Comptroller to 
have an adequate management and administration of the 
State Retirement Systems. 

We hope that the Commission V7ill sustain its 
prior position and allow the two Chief Executive Officers 
of the State to be constitutionally elected to be the 
Governor and the Lieutenant Governor. We think that there 
is no other necessity, there is no other level of govern- 
ment at which anybody other than these people are, in the 
administrative branch, are chosen by popular vote. 
Certainly, at the Federal level it is not done. At none 
of the local levels under the current charter form of 
government at least it is not done, and it seems no reason 
in our opinion to make an exception of it at the State 
level. 



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THE CHAIRMAN: Any further discussion? 
Mr. Martineau. 

MR. MARTINEAU: My only comment would be, I 
think Mr. Goldstein's description of the qualities that 
are needed for a Comptroller are those which are less 
capable of being satisfied by the elective process. 

THE CHAIRMAN: Mr. Clagett. 

MR. CLAGETT: I would make the comment that the> 
have been well satisfied by the present Comptroller. 

THE CHAIRMAN: Mr. Case. 

MR. CASE: Well, I think -- 

MR. GENTRY: Bless you too. 

MR. CLAGETT: Off the record. 

(Discussion off the record followed.) 

THE CHAIRMAN: Mr. Case. 

MR. CASE: I think that the emphasis should be 
placed where Mr. Goldstein placed it in his oral presenta- 
tion after he read the statement that you have just heard, 
and it is simply this as he sees it, that while it is true 
that in the Federal sense you do not have an independently 
elected official to deal with revenue matters, yet you do 






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in most of the State Constitutions that we now have. 
That was his first point. That we asked him, and I have 
forgotten how many he said. Maybe you remember, Mr. Chair- 
man, but my recollection was that the overwhelming majority 
of states provide that the person who is in charge of the, 
and responsible for the fiscal affairs of the State should 
be elected, or is elected. 

Now, the second point he made was that this is 
a salutary provision because it does provide a system of 
checks and balances. By that he meant that if a person 
is elected by the people and feels directly responsible 
to them, then in the most important aspect which government 
deals with them, namely their pocketbook, he is free to 
report to the people the fiscal facts as he sees them and 
is not bound by what the Governor may say. 

He pointed to his own experience in this past 
administration, almost past administration, when the 
Governor advocated a tax increase and when he campaigned 
very strongly that there was no necessity for a tax in- 
crease and brought that matter to the attention of the 
people, and, of course, he was later proven to be right 



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and the Governor proven to be wrong, and he said that he 
felt that this was something that the people were entitled 
to. 

He said that in no way could the people get 
this through the office of an appointed fiscal agent 
because the appointed fiscal agent would undoubtedly do 
what the Governor told him to do and could not exercise 
the degree of independence that the people were entitled 
to have as their representative. 

Ue asked him whether or not he felt that the 
office of Comptroller could be combined with that of 
Treasurer and he answered that question in the affirmative, 
stating in effect that he thought that his concept of it 
was the chief fiscal officer of the State combining all of 
the duties of the Comptroller and all of the duties of the 
treasurer, and he felt that this was an important integral 
part of government and that the people should be allowed 
to plnce somebody there who would be directly responsible 
to them. 

Now, I think that about sums it up, Mr. Chairman. 

THE CHAIRMAN: Yes, I don't -- to answer your 



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1 question directed to me, I don't think he said that there 

2 were a majority or an overwhelming majority, whatever it 

3 was you said of states that provided for the election of 

4 a fiscal officer like this; there was a substantial number. 

5 My recollection is there were 13, but we will try to check 

6 that. 

7 MR. CASE: My memory is quite hazy on that. 

8 I know he mentioned California and I believe Oregon. 

9 THE CHAIRMAN: Mr. Power, do you happen to 

10 know offhand? 

11 MR. POWER: I do not. 

12 THE CHAIRMAN: We will check it and let you 

13 know. 

14 MR. CASE: I wish you would because my memory 

15 is hazy on that, but he did say there was a substantial 

16 number, at least we can go on that. 

17 THE CHAIRMAN: Dr. Bard. 

DR. BARD: I would just like to add a few points 

to that which was given by Mr. Case. 

First, I would like to correct one of the state 
ments in regard to the fact that there are no local units 



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1 that have the Comptroller elected by the people. Baltimore 

2 City does elect the Comptroller; and next I would like to 

3 point to the fact that in a large number of states, and 

4 I'm not sure how many, the key point is that at least one 

5 other state-wide officer is elected, one other than the 

6 Governor. 

7 Now, the way we have arranged the Governor and 

8 a Lieutenant Governor, this really represents one individu4l 

9 in a way, at least one political party. 

10 The next point that I would like to make is that: 

11 on two recent occasions the Governor represented the so- 

12 called minority party. VJith the Comptroller representing 

13 the majority party, the possibility of this taking place, 

14 there is a bridge to the Legislature that would not other- 

15 wise be available and I think that is a point which might 

16 be given some emphasis, and I do believe that when the 

17 Governor represents the minority party it occurs to me 

18 that in these bodies such as the Board of Revenue Estimates 

19 et cetera, a representation from the so-called majority 

20 party as applied to the Legislature, I know we used the 
word majority party in terms of the Governor, having such 



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representation would be significant, but I am mainly 
?. concerned about the fact that overnight we are eliminating 

3 all other State-wide elective officers other than the 

4 Governor. 

•; Now, 1 don't feel that way about the Attorney 

6 General. I think this is another kind of a responsibility 

I would like to see us keep one more. 
I THE CHAIRMAN: Any further discussion? Mr.Sayre. 

£ MR. SAYRE: With respect to that post, or to 

10 the checks and balances that Mr. Goldstein referred to, 

11 the question was raised, well, suppose that the State 

12 Legislature created a general accounting office type of 

13 establishment similar to the Federal Government, and he 

that 

14 generally referred that/would be another check and balance. 

15 However, this would be the area where there could be a 

16 bona fide post, auditor, a proper channel for a minority 

17 party and an independent revenue estimating source. 

18 If you look at the difference of opinion between 
: Mr. Goldstein and Mr. Tawes when Mr. Tawes did gain his way 

with the State Legislature and then later it was reversed, 
they both had access to the same information but it was a 



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: different interpretation as to how to use that information, 

2 and here you had a case where several elements could have 

3 entered in. Now, I am not saying that these elements 

4 entered into this particular case, but you would have the 

5 possibility of vying for a political advantage, a position 

6 of advantage wherein you would maybe be able to run for 

7 Governor next time or in some other political position, 

8 and use this opposition to the Governor as one of your 

9 stepping stones. 

10 One of the purposes of the Executive Committee 

11 here was to have the buck stop at the Governor's office. 

12 If you were to divide the responsibility of the Governor's 

13 office by having other elective officers, you are making 

14 it so the Governor cannot be responsible for those function 

15 that he is supposed to be responsible for in the Executive 

16 Department. It is unwise from a public administration 

17 viewpoint to split responsibility that way . The Governor 
: is responsible to the people more so than the Comptroller. 

He lives in a glass house. The sources of independent 
revenue estimating can be obtained elsewhere. It is not 
to the advantage of good administration to have this type 



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1 of splitting of responsibility. 

Now, in regard to functions, and I think this 

3 is a very important thing for this Commission to be aware 

4 of, what are the functions that the Comptroller performs 

5 today, I am talking about major functions. In effect, 

6 this is sort of that of an auditor, collector and estimat- 

7 ing revenue. All these functions are such that they are 

8 not policy-making. Therefore, I do not think that they 

9 should be elective. 

10 Mr. Goldstein indicated that he would not be 

11 opposed, in fact he would favor more people being elected 

12 State-wide in the Executive Branch, and one statement he 

13 referred to was where they have, I think, seven state-wide 
14- officers elected. In other words, his idea of checks and 

15 balances would so split up what we are trying to achieve 

16 here in this Commission that I think it is a matter of 

17 viewpoint as to how best you are going to achieve what we 

18 are trying to achieve in a new Constitution. 

19 Today, most State Constitutions are hopelessly 

20 archaic and I hope we don't make that mistake in the 

21 Executive Department. 



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1 THE CHAIRMAN: We have been discussing the 

2 Report of the Committee. There is no motion before us 

3 and before we move any more, I think if we are going to 

4 have further discussion there ought to be a motion. Do 

5 you want to make a motion, Mr. Case? 

6 MR. CASE: Well, I will make the motion that 

7 there be in the Constitution a designated chief fiscal 

8 officer who shall be elected by a vote of the people. 

9 THE CHAIRMAN: And is there a second? 

10 MR. DELLA: Seconded. 

11 THE CHAIRMAN: All right. Now, Mr. Delia. 

12 MR. DELLA: Mr. Chairman, I am in support of 

13 the motion because after we took action on this before, I 

14 gave it some very serious thought, and I, well, was a little 

15 bit -•• became a little bit concerned about the action that 

16 we had taken. 

17 I am aware that we need a person at the head 
- of government who is going to be responsible to the people, 

and at the same time I object to some degree to the possi- 
bility of this same person developing around him the kind 

21 of a situation that could be, what we might call a kingdom 



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1 as such, and I am of the opinion that this could very well 

2 happen if he is going to be in a position to name his 

3 Attorney General, name his Comptroller, and surround 

4 himself with the kind of people that would be doing his 

5 bidding as such, who would be responsible to him and not 

6 to the people as such. 

7 I can see the wisdom of the Governor having 

8 his own Attorney General who interprets the laws of the 

9 State and such, that it would be of certain advantages 

10 to him because where you have a minority party and a major- 

11 ity party, if the minority party is elected Governor and 

12 the majority party is elected Attorney General, I am almost: 

13 sure the minority Governor is going to have someone he can 

14 depend on to interpret the laws to his benefit without 

15 subjecting himself to a lot of ridicule from the population 

16 as such. 

17 In terms of the Comptroller, I think this is a 

18 different situation. I am of the opinion that the people Win 

19 are paying their tax monies into the State feel that they 

20 should have some voice in saying who this person is going 

21 to be and how that office is going to be operated as far 



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as the collections and expenditures of money, and a voice 
that can be heard in that regard is someone that they can 
have confidence in if they elect him as such. If he turns 
out to be a person that does not conform to that philosophy 
they have a right to remove him at the next election. 

I think in these kind of situations, I think 
the people's voice should be heard and regarded in the 
type of people they want in these type of positions, so 
I support that motion. 

THE CHAIRMAN: Mr. Hargrove. 

MR. HARGROVE: Mr. Chairman, I think there is 
one thing that we must keep in mind. I think what we are 
trying to do is strengthen the Executive Branch as well as 
the Legislative Branch and the Judicial Branch. 

Now, it seems to me what we are talking about 
is a system of check and balances within the Legislative 
Branch of government. Now, the concept of checks and 
balances as I understood it was never really that concept. 
It was a concept of between branches of government, and I 
think we are assuming, and I think even Mr. Goldstein 
assumes in his paper that we are going to have a great 



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many incompetent Governors because he says if V7e get an 
incompetent Governor so many things can happen. 

I think we have to assume that we are going 
to -- that the people are smart enough to elect a competent 
Governor and thereby he will in turn appoint competent 
people to the positions of trust within the State govern- 
ment, and I think as long as we have a system in one 
branch of government whereby three, four or five people 
are elected who have little or no responsibility to each 
other but all to the electorate, then that thing that we 
are driving at in the formation of the new Constitution 
is defeated, that is the strengthening of that branch of 
government, so for that reason I would be against the 
inclusion of this office as a constitutional elective 



office. 



THE CHAIRMAN: Any further discussion? Judge 



Adkins . 

JUDGE ADKINS: Since I will not have the right 
to close, I would simply like to underscore what has just 
been said. 

It seems to me that the point has been very 



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1 forcibly made that checks and balances should not apply 

2 within a single branch of government, and to the extent 

3 that we try to set up a branch where each branch has a 

4 system of checks and balances, to that extent we set up 

5 a situation where movement becomes difficult in each 

6 direction. 

7 The theory of checks and balances is well 

8 ingrained that it is a magic word in terms of political 

9 philosophy, but I think the point has been well established 

10 that it should not be made in a branch of government. 

11 I am a little at a loss as to how to answer 

12 this argument that we now have a minority Governor and 

13 hence we need a member of the majority party to protect 

14 the majority party in the State Government. This argument 

15 was not, interestingly enough, made prior to the recent 

16 election when this was in discussion before. I have to 

17 say that I cannot see how the situation has changed in two 

18 months time to change the recommendation of this Committee 

19 It does not seem to me that is a good argument. That argu- 
ment will have to bear very strong analysis. If the people 
have elected to change their leadership at the very level 



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where the leadership can be effective, then it seems to 
me that that leadership should be given the power to be 
effective, and you should not have what was referred to 
earlier as, I think, a kingdom, some fear of a kingdom. 
What you are now going to have is two warring suzerainties 
and not a kingdom. 



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JUDGE ADKINS: I think that is a good note 
on which for me to quit. 

THE CHAIRMAN: Mr. Brooks? 

MR. BROOKS: Two additional comments along the 
same line; leaving the personality who holds office at 
the present time out of the question, I think there are 
two things in addition to note, one of which is, how the 
State traditionally goes about selecting those candidates 
who run for Comptroller and Attorney General. I think it 
is notable that these persons are not altogether chosen 
as candidates because of their capability for the par- 
ticular office, but one major consideration in addition 
to what background they may have for the job has to do 
with other factors taken into consideration to balance 
political tickets, which may not exactly produce the 
person you really want to hold the job if you could do 
it objectively without having to take into consideration 
the balancing of your ticket proposition. 

Second, I think th.2, not so much the minority 
party situation, but the situation where you, in fact, 
have the Governor of one party, whichever party it is, 



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and a Comptroller of the other party, you are in the 
situation whether it be a Comptroller or any other Member 
of the Executive for which the Governor is ultimately 
responsible of establishing an office to which people 
look for more than the conduction of the particular job 
for which that person is elected; whichever partythat 
person is elected from will look to that person as a 
political leader and as a chief of the party and as a 
person responsible for doing a great deal more than car- 
rying out the functions of that job, which otherwise are 
really the responsibility of the top of the Executive 
Branch. 

I don't know, if you want a strong Executive, 
that this is one of the things that you want to accom- 
plish in achieving a strong Executive. 

DR. BURDETTE: Mr. Chairman, I am disposed to 
vote in this situation for a strong Executive, as a 
principle, without any reference to current officeholders 
who will not be affected by what we do here, save as 
they might be affected for some fuLure term of office, 
as I would understand the probablities of our schedule. 



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I realize we haven't developed our schedule, but I pre- 
sume we aren't planning a Constitution which would take 
an elective officer out of office for the term for which 
he was elected. I may be mistaken. I would be astonished 
if we get to that point. I would be prone, to vote for a 
strong Executive. VJhen I say that, I have a question 
that I should like to get in the record, and indeed, 
inquire myself about: I think Judge Adkins was quite 
right when he said that the most persuasive thing, as I 
understood him, which the present Comptroller said is 
that we must have or ought to have a means of getting 
an independent professional estimate of revenues. Now, 
I would presume that could be answered , and I ask whether 
it be, could be answered by providing, leaving to the 
wisdom of the Legislature to provide that there should 
be such an office. ILcoiiH have to be done by law. The 
Governor could veto it, but in a situation in an attempt 
to get a professional argument, I presume this would be 
constitutional. Am I right? 

THE CHAIRMAN: The Board of Revenue Estimates 
is a statutory creature now. 



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DR. BURDETTE: I am attempting to get into 

2 the record that it would be possible to set up an inde- 

3 pendent rule making body. 

* THE CHAIRMAN: I think this is pointed out 

5 in the earlier Report of the Committee on the Executive 

6 Department. Any further discussion? I have a brief 

7 comment before Mr. Case closes. 

8 Mr. Goldstein was very articulate, and I 
think very persuasive and made a strong case, but when 
you think about it, two things stand out in my mind. 



9 
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H I am not thinking merely of his written statement but of 
*® his oral amplification of it. One is the point mentioned 
13 by Mr. Brooks that traditionally in Maryland, the Comp- 
ly troller and the Attorney General are on a slate with the 
15 Governor. Of course, this is always true in the primary, 
1^ and it may not always be true in the general election, 
17 but by and large, it is; so that you don't have quite 
IS the independence that Mr. Goldstein's statement would 

1 9 make you think there is in the Comptroller , and I think 

20 one of the reasons that his argument and lis statements 
re so persuasive was that he has proved the exception 



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to the rule, and I think this is a matter of personality 
rather than a matter of theory. In other words, I think 
that Louie Goldstein has been an independent Comptroller, 
and the fact that he is on the same slate with the Governor 
hasn't prevented him from speaking his mind, but I think 
we could be mislead into thinking that that would 
traditionally or always or even in many instances be the 
case. Secondly, and I think this is by far the more 
important point that he made, he completely persuaded me tl)at 
there is a necessity in State government for a watchdog 
of the Treasury, , a post-audit man who was not dependent 
on the Governor for his sources of information, but the 
fact is that most of the functions of the Comptroller are 
not of that nature. They are administrative. He is an 
arm of the Executive in enforcing the law, collecting 
taxes, et cetera, so that by far the greater part of his 
function is not the function that lis plea relates to, 
and it seems to me that that function can really be 
served best in some manner akin to that, that the Federal 
government does, by appointment or designation or election 
whatever way the Legislature wants, of a position created 



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1 by the Legislature, sort of a Comptroller of the — not 

2 Comptroller of the Currency, Comptroller General, function! 

3 so that you could have someone, not Chief Fiscal Officer, 
* in the sense of collecting the revenues, but Chief 
5 Fiscal Officer in the sense of performing the post-audit 

function completely independent of the government. 
« Finally, I want to simply say this to you: 

" This recommendation of the Committee of the Executive 
9 Department was adopted, either unanimously or nearly 
*0 unanimously at the Easton meeting at which we had 25 members 
H present. Whatever action is taken on this day, where we 
have only 17 present, I would hope would not be by close 

13 division, because I think it would be unfortunate if a small 

14 majority should overturn the action of practically the 

15 whole Commission, so that whichever way it goes, I hope 

16 it goes decisively. 

17 Mr. Case? 

18 MR. CASE: After hearing the lucid and, I 

19 might say, brilliant paper of Senator Goldstein presented 
here today, and recognizing as you must, that I am one who | 
voted in favor of the Commission^ recommendations at the 



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1 earlier stage and am now seeking to point up his point 

2 of view, I- should ask if anybody who doesn't have any 

3 other questions, and I am sure they don't, I will let 

4 the record stand as it is. 

5 THE CHAIRMAN: Are you ready for the question? 

6 All right, then, the question arises on the motion that 

V there is a provision in the Constitution for the election 

8 of a Chief Fiscal Officer. A vote Aye is a vote in favor 

9 of the position of the Committee, that there be no such 
1° elective position provided for in the Constitution. All 
H those in favor, please signify by a show of hands. 

12 MR. BROOKS: Two. 

13 THE CHAIRMAN: Contrary? 

14 MR. BROOKS: Fourteen. 

15 THE CHAIRMAN: The motion is lost, 2 to 14. 

16 MR. CASE: I didn't vote. 

17 Now, Mr. Chairman, I wondered, is there any- 

18 thing else? 

19 THE CHAIRMAN: This concludes this matter. 

20 MR. CASE: I have got a related thing. 

21 THE CHAIRMAN: Does it have to do with the 



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Executive Department? 

MR. CASE: It has to do with the Fiscal Depart- 
ment, really. 

THE CHAIRMAN: Go ahead, then. Just a second, 
Mr. Case. Judge Adkins , you didn't have anything further 
for your Committee to report on? 

JUDGE ADKINS: No, sir. We have the report 
which we have filed, but it is basically a codification 
of what has been previously acted upon. 

THE CHAIRMAN: I announced this morning before 
I came in that that was circulated for information, not 
for action. 

Mr. Case? 

MR. CASE: Since everybody has their mind now 
centered on this fiscal matter, I would like to present 
to the Commission a question of policy for guidance 
by my Committee, and I will state very generally the back- 
ground: It has been the thinking of my Committee, and I 
believe concurred in by -- is that coriect, Dale? 

JUDGE ADKINS: Yes. 

MR. CASE: -- concurred in by the Corrmittee on 



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the Executive Department, that the Constitution should 
provide for, in some way, for a Department of Revenue, 
the chief of which would be not mentioned in the Const i- 
. tut ion, who would be designated by the Governor and that 
there would be collected in this Department all of the 
functions now exercised by the Comptroller and by the State 
Treasurer, and that this be, including the post-audit 
function, that Mr. Eney suggest. 

I think that it would be very helpful to my 
Committee to have an expression by the Commission as to 
vhether or not you think there should be such a provision. 

THE CHAIRMAN: All right. Let's go around the 
table, if we can, and get quickly an expression of views, but 
before we do that, are there any questions about the pro- 
posal? 

Mrs. Bo the? 

MRS. BOTHE: Yes. Could you give us just 

some idea what purpose it might serve? 

MR. CASE: There are a number of provisions in 

i 

i 
the Constitution dealing with what I earlier called flow ofj 

funds; State, for example, that all State monies must be 
-p a id to the State 3fe j , v£tniE~vutt-frr-uTvr-uf^h7r- 









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1 things; this Department's only obligation would be in a 

2 sense to supervise and to control that flow of funds into 

3 the State. It would also perhaps have the obligation of 

4 a post-audit procedure. It would have such other 

5 obligations relating to fiscal affairs of the State that 

6 might be delegated by the General Assembly, something of 

7 that nature. 

8 THE CHAIRMAN: Including for instance supervision 

9 over the Office of State Auditor? 

10 MR. CASE: That is right. 

11 THE CHAIRMAN: Supervision over clerks of 

12 court and all of these people? 

13 MR. CASE: That is right; in other words, so 

14 there would be a central place that the Legislature would 

15 put these responsibilities rather than letting the Legis- 

16 lature just go off in all directions and say, This one 

17 should do it, that one should do it, et cetera, that it 

18 would be sort of a central collecting office for these 

19 fiscal duties which are, of course, very numerous. 

20 MRS. BOTHE: Do you know how it is handled? 

21 Other State Constitutions? 



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1 MR. CASE: Well, we have gotten, you might 

2 say, a very poor response in an effort to get research 

3 on this, and I think there are five or six States, maybe, 

4 that have something of this nature, but I haven't had time 

5 to look it up myself, and neither has my reporter; and 
we have gotten nothing from the States. 

THE CHAIRMAN: Mr. Brooks says that is about 

3 all there are. 
3 MR. BROOKS: There is hardly anything in any otner 

10 Constitutions on this subject. 

11 THE CHAIRMAN: But you must remember also that 

12 Maryland is the leader in the use of the Executive 

13 budget, so that this shouldn't astonish you. Any further 

14 questions before we get into an expression of views? 

15 I take it Mr. Case is really asking for two 

16 things: One, whether you deem it desirable that there 

17 be some provision for central control of the flow of 

18 funds into the State Treasury, and secondly, whether you 

19 think that is something that should be provided at least 

20 in skeleton form or in the Constitution or whether it is 

21 something best left to the Legislature. 



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MR. CASE: That is exactly right. 

THE CHAIRMAN: Let's go right around the table, 
starting at my left; anyone v7ho has any comment to make 
on it? 

MR. MARTINEAU: I would rather start with the 
Executive Committee Chairman and get some indication 
from the Committee as to whether they have considered 
this and what their views are. 

JUDGE ADKINS : Our Committee has not considered 
it as a Committee matter. We have informally discussed 
it among some of the members of the Committee, and I have 
discussed it in considerable detail with Mr. Case. 
Therefore, what I say will have to be a personal, not 
Committee observation. I think the idea is sound. It 
does seem to me there should be some constitutional 
assignment of responsibility for the collection of funds 
at a central place to permit the ease of accounting and 
to permit the dissemination of accurate information 
without the necessiry of convening it from numerous 
branches of the government. A Department of Finance 
could, in my thinking, at least, envision not only the 



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1 present functions of the Comptroller, but likewise the 

2 present functions of the Treasurer, and would be the 

3 accountable officer appointed by the Executive, but would 
* be the accountable officer for the receipt and disposition 

5 of all State revenues. 

6 I think the idea is quite sound in concept. 

7 I would like to make one other comment, and that is to 

8 refer back to the statement that the Chairman made in dis- 

9 cussion of the last pending question about a post-audit, 
some kind of post-audit procedure. Our Committee has 

H discussed that. We would like to see that implemented. 

*2 ye thought it probably should come from the Legislative 

13 Committee since we thought if it were to be truly effec- 

14 tive, the post-audit procedure should be legislatively 

15 oriented rather than executively oriented, but in answer 

16 to the pending question, we think the idea has merit. 

17 THE CHAIRMAN: Any further discussion or com- 

18 ment or suggestion? 

19 Mr. Clagett? 

20 MR. CLAGETT: I think that a department of this 
type is quite similar to the consideration that was given 



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- by the Political Subdivisions Committee on whether or 
2 not v/e should recommend a Department of State and Local 
:■ Affairs and partly resolved that question in the nega- 
' tivc, feeling it was properly a matter for statutory 

5 provision rather than constitutional provision, and I 
G feel the same way as far as the Department of Revenue. 

I feel it is properly statutory rather than constitutional!. 
THE CHAIRMAN: Any further comment? 
9 Dr. Michener? 

10 DR. MICHENER: At the Federal level, I just 

11 might mention the whole trend is away from rigidity to 

12 flexibility, even to the extent of giving the heads of 

13 department and even the President power by executive 

14 order to move functions around, rather than to cement it 

15 in a constitutional provision. 

16 THE CHAIRMAN: Any further comment? 

17 Mr. Haile? 

18 MR. HAILE: If it is desirable to combine the 
offices of Comptroller and Treasurer, then the Legislature! 

: would move. I suggest we leave it to the Legislature. 

But the third official function of auditing, I don't 



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believe I would favor, if I were a Member of the Legis- 
lature, combining Auditor and Comptroller and Treasurer 
all in one office, but I think on the legislative floor 
is the best place to resolve these, not here in our pro- 
posal for a Constitution. 

THE CHAIRMAN: Any further suggestion or com- 
ment? 

Mr. Sayre? 

MR. SAYRE: It seems to me that of necessity, 
such a responsibility in the Executive Department would 
require always current auditing and post-audit and that 
the Legislature would not necessarily want to rely upon 
that, and therefore would set up its own post-audit 
activities, which I think it has a right to check 
the bookkeeping system or the accounting system and 
things of that nature to do with how you keep records of 
fiscal policy achievements. 

I am inclined to feel that they should be 
statutory, personally. It just puts into the Constitution 
something that I think will probably be. there anyhow by 
statute or by simply through the Governor's organizations! 



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powers . 



THE CHAIRMAN: Mr. Martineau? 



MR. MARTINEAU: My only question would be 
with respect to this post-audit whether there is any 
problem of the constitutional authority of the Legisla- 
ture to create something similar to the General Accounting 
Office, which is more of a branch of the Legislative 
Department than a branch of the Executive Department, 
which would have the authority to have access to all of 
the records of the Executive Department, and if there is 
any doubt as to its authority, I think it is well to put 
it in here. If there is no doubt as to the authority of 
the Legislature to do this, I don't see any reason to 
do it . 

THE CHAIRMAN: The State Auditor is completely 
statutory, is it not? 

MR. CASE: Thac is right; no doubt, the Legis- 
lature could do it. 

MR. MARTINEAU: The State Auditor is not inde- 
pendent, I don't think, of the Executive. It is part 
of the Executive Branch. 



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THE CHAIRMAN: But he is independent in a large 


2 


measure except he is appointed. 


3 


MR CASE: You better believe he is. 


4 


THE CHAIRMAN: He exercises and is sworn to 


5 


exercise an independence of judgment. 


6 


MR. MARTINEAU: I gather the idea of the post- 


7 


audit independent of the Executive Branch was to have a 


8 


department which was not part of the Executive Branch of 


9 


the government, such as the General Accounting Office. 


10 


MR. SAYRE: That would be at the option of the 


11 


State Legislature, though. 


12 


MR. MARTINEAU: If they have the power, there if 


13 


no reason to put it in the Constitution. My only ques- 


14 


tion is, should there be a specific power in the Consti- 


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tution to create this, so that they can do it? 


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THE CHAIRMAN: Any further discuss ion? 


17 


Mr. Case, I think that is about it. 


18 


All right -- 


19 


MR. CASE: I still don't know what -- 


20 


THE CHAIRMAN: I don't think you have a consen- 


21 


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1 MR. CASE: I rather gather the Commission 

2 feels it should be legislative and statutory, and there 

3 shouldn't be anything in the Constitution about it. 

* That is V7hat I gather, am I wrong about this, is this 

5 right? 

6 THE CHAIRMAN: That is the way I think it is. 

7 MR. CASE: Fine. That concludes the work 

8 of my Committee. 

9 DR BURDETTE: Mr. Chairman? 

10 THE CHAIRMAN: Just a second. Mr. Brooks says 

11 that if you are serious that you are not going to make 

12 a further report, maybe to have something in the record, 

13 we ought to take a vote and have a consensus of it. Has 

14 your Convnittee considered it enough that you would know 

15 whether they are going to make a report on it independent- 

16 ly? 

17 MR. CASE: No. The Committee work has been 

18 relegated to the Staff and Chairman up to now. The Staff 

19 is now in bed with the flu. The Chairman is here. 

20 THE CHAIRMAN: Let me take a vote just for 
whatever benefit it may be so that we will have some idea 



21 



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The question will arise on a consensus as to whether or 
not the fiscal function which we have been discussing, 
namely, some measure of possible audit review and control 
of the inflow ofrroney into the Treasury should be regu- 
lated by the Legislature or whether there should be either 
regulations or some authorization for it in the Consti- 
tution. A vote Aye will be a vote in favor of regulation 
of the subject matter by the Legislature. All those in 
favor of legislative regulations, signify by a show of 
hands. 

MR. BROOKS: Seventeen. 

THE CHAIRMAN: Contrary? The consensus, the 
unanimous consensus of those present is that the subject 
matter is one that could be left to regulations of the 
Legislature . 

Me will now move to consideration of the 
continuation of the Seventh Report of the Committee on 
Political Subdivision:-. This deals with Article XII, 
Intergovernmental Relations, dated December 3, handed 
to you this morning, a pa^e and a half. 

Mr. Clagett? 



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1 MR. CLAGETT: Mr. Chairman, back at the meet- 
c ing of September 20, 19 66, the Commission considered 

2 an intergovernmental article contained in the Committee's 
Fifth Report, and at that time, Mr. Eney suggested that 

I the Section of that Article dealing with the permitting 

of compacts between local government and other governments, 
the 
without/consent of the General Assembly, would be per- 

8 mitted and that it was a movement in the wrong direction, 

: and could get the two governments, and particularly a sub- 

10 division of the State government, into some difficulties. 

11 This thought was concurred in by Mr. Sykes with respect 

12 to the practical matters between a civil division and 

13 another State, and there was a motion that was made and 

14 seconded, which reads as follows: Resolved, that Article 

15 XII be redrafted, with particular reference to clarifica- 

16 tion of the fact that the Article encompasses inter- 

17 governmental relations and cooperation; also to provide 

18 safeguards for local governments or authorities with res™ 

19 pect to contracting outside the State and within the State. 

20 With that mandate in mind, the redraft is now 

21 5_n front of you as a continuation of the Seventh Report, 



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and I may read it, because it is quite brief: Article 
XII, Interstate Governmental Agreement, Section 12.01, 
Intergovernmental Cooperation: Nothing in this Consti- 
tution shall be construed to prohibit: (1) The coopera- 
tion of the government of this State with any other 
governments; or (2) With the approval of the General 
Assembly by law, the cooperation of the government of any 
county or other civil division v;ith any one or more other 
governments outside the boundaries of the State in the 
administration of their functions and powers. 

By this Article we attempt to insure that there 
is no State constitutional obstacles to cooperation be- 
tween the State and its civil divisions and other States, 
their subdivisions or the Federal government, other than 
as may be included in the compact clause of the Federal 
Constitution. 

We feel that this Article should be in the 
Constitution. It may serve no other purpose than to point 
up a very important medium by which the solution to prob- 
lems which transcend the boundaries of the State and politi- 

I 
cal subdivisions can b2 solved. It points up a method of 



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of cooperation, and would remove any obstacles where 
persons may feel that by reason of no specific provision 
there are obstacles, which would mean nothing more than 
time delay for opinion by appropriate authority, et 
cetera . 

We feel that it is important to include it in 
the Constitution and therefore submit the Article as re- 
vised . 

THE CHAIRMAN: Any questions? 

Mr. Sayre? 

MR. SAYRE : Juot on government here. Shouldn't 
the "s" be deleted? 

THE CHAIRMAN: Where? 

MR. SAYRE: In sentence one, the cooperation 
of the government of this State with any other government. 

THE CHAIRMAN: Do you accept it, Mr. Clagett? 

MR. CLAGETT: I can't see the difference. 

MR. SAYRE: It is just English. 

THE CHAIRMAN: Singular. 

MR. CLAGETT: I would yield to better authority 
th^n my own. 



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1 THE CHAIRMAN: In the absence of objection wa 

2 strike the "s" from the last word of Section 1. 

DR. BARD: Why don't you get rid of the "any"? 
THE CHAIRMAN: Can wa leave that to the Com- 

5 mittee on Style? 

DR. BARD: I think so. 

THE CHAIRMAN: Any other question? 

3 MR. CASE: Is the word, cooperation, a word 
S of art? 

10 ' THE CHAIRMAN: Mr. Clagett? 

11 MR. CLAGETT: No, it is really meant to be 

12 and to carry with it just what it would normally purport 

13 to mean and carry with it. This is a revision and we 

14 mean it actually just to carry the normal connotation 

15 of cooperation. 

16 MR. CASE: Does it mean contract, for example? 

17 MR. CLAGETT: Yes, it could mean contract. 

MR. CASE: As you used it? 
MR. CLAGETT: As we used it. It means subject 

to the contract clause of the Federal Constitution. 

MR CASE: Are you borrov?ing trouble here by 



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1 not saying what you mean? I think it could be contended 

Z with some degree of persuasiveness that cooperation is 

3 less than contract with or agree with in writing or some- 

4 thing of that nature. 

5 JUDGE ADKINS: The word, voluntary. 

6 MR. CASE: That is right. 

7 MR. SAYRE: The model uses the word cooperation 

8 so to some degree I would think it is a word of art. 

9 MR. CLAGETT: The model does point out that it 

10 is inconceivable that there would be anything in the Con- 

11 stitution even as drawn by them that would prohibit what 

12 is contemplated hare, and what is contemplated here is a 

13 method of voluntarily getting together and solving prob- 

14 leras . Now, if consistent with that effort, it results in 

15 an agreement or contract, I would say that you still have 

16 the Federal restrictions to meet, and if none are violated 

17 there, then there would be nothing to prohibit that type 

18 of result. 

19 THE CHAIRMAN: Mr. Clagett, isn't the use of 

20 the word cooperation, in the model, and in the literature 
generally discussing authorities of various sorts and intra- 



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1 state and interstate cooperation deliberately used to keep 
c away from the notion of compact? 

MR. CLAGETT: I think that that would probably be 
- logical, because in each of those, they say, and agree, 

5 and by the second phrase is meant specifically contract, 

6 compact or agreement. 

THE CHAIRMAN: Is your Committee meaning to 

3 keep away from this, or are you meaning specifically to 
9 go far enough to authorize civil division to make, compacts 

10 with other governments, if the General Assembly approves? 

11 MR. CLAGETT: If the General Assembly approves, 

12 and as I stated before, by the voluntary approach an 

13 agreement is arrived at, we would not prohibit them from 

14 entering into that agreement. 

15 THE CHAIRMAN: So that you really mean to go 

16 the step further and to talk in terms of compact and not 

17 merely cooperation? 

18 MR. CLAGETT: Yes, we do, provided that you 

19 don't violate the compact laws of the Federal Constitution 
and any restrictions that the State by general law or by 
specific action upon a particular problem might impose. 



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1 THE CHAIRMAN: Mr. Gentry? 

: MR. GENTRY: I don't know whether it helps or 

opens up another area, but in 11.06, intrastate, we 
•- talked about for the joint administration of any 
l functions, and powers and sharing of costs thereof. 

I assume what we maant, there was cooperation as well. 
MR. CLAGETT: Well, what was meant there, 

cooperation and agreement; there specifically we did in- 

'- elude the idea of entering into agreements and contracts 

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12 MR. GENTRY: It didn't say contract or agree- 

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13 ment . 

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14 MR. CIAGETT: No. That is why I can't rule it 

15 out insofar as you asking me to interpret the word , co- 

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16 operation, but as pointed out earlier, the model uses 

17 the word cooperation, and then does include after it, 

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18 and either into agreements, et cetera. Consequently, I 

19 think that what we want to emphasize here is a voluntary 

20 means of approach to solve the problems, but we do not 

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21 mean to prohibit agreement that might result in that 



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voluntary approach. 

THE CHAIPMAN: Mr. Sayre? 

MR. SAYRE: I have a question that you raised, 
and we can put it on the table. You indicated that the 
very thing that is in the model Constitution is something 
that we are now having perhaps second thoughts about, and 
I would like to know the reasons for those second thoughts; 
why it is bad for a County of one State to be able to 
negotiate directly with a County of another State. 

'THE CHAIRMAN: I don't suggest it is bad. I 
suggest that in the light that you are discussing this 
subject, and in the model Constitution, an effort has 
been made to avoid goin^, that far because some people 
think that the County of one State ought not to be able 
to enter into a compact with a County of the other State. 
I think the suggestion has been made that cooperation 
between Counties of five States can be on some degree a 
little lower level than a contract, but I understand the 
Committee's position to be that it recommends that we 
go the whole step, that we authorise contracts. 

MR. SAYRE: Let's assume that we do go the 



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whole way. Why would that be bad? 

THE CHAIRMAN: I don't say it would. 

MR.- SAYRE: I see. I thought you indicated 
there were some writings or something that indicated 
this might not have been desirable, and I was seeking 
the answer. 

THE CHAIRMAN: I think I can answer you there. 
There are some people who feel that interstate compacts 
should be negotiated and entered into only at the State 
level and not at the local level, local government level. 

MR. SAYRE: For what reason? 

THE CHAIRMAN: I don't think that I could 
expound on that for you. 

DR. BARD: The State is ultimately responsible. 

MR. CLAGETT: Let's bring this down to specifics 
If the City of Washington and the Counties of Montgomery 
and Prince Georges want to control air pollution because 
of the operation of a concrete plant in either one of 
the Counties, that is flowing over into the City, we feel 
that they should be able to get together and solve that 
problem. Nov;, I do point out to you that by the method 



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which we are approaching this thing, it would be with the 
approval of the General Assembly law, and it would be, I 
think, a means whereby the criticism just mentioned would 
be satisfied. 

MRo SAYRE: One thing I would like to raise as 
a possibility here, so as to allow more freedom, in 
Section 11.03 we allow a County to do anything not otherwise 
denied by the Constitution, public general law or its 
charter. We refer to civil divisions. If we were to 
confine the activity of a governmental jurisdiction -- if 
we made it so that only a representative government could 
cross State lines in its negotiations, unless denied by 
public general law or the. State Legislature, I wonder 
if this might not be a neat compromise so that you would 
have at least a responsible body instead of an authority 
that would have, such a pouer. 

THE CHAIRMAN: I think you are getting into 
complications rather than the reverse. May I make this 
suggestion, not by way of enforcing it particularly, but 
just seeking to see if this is wha t the Committee intends. 
If you added at the end of Section 1, and also of Section 



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2, a phrase, such as, and the entering into contracts or 
compacts with respect thereto, would this be what the 
Committee is intending to recommend? Section 1 would 
then read, The cooperation of the government of this State 
with any other government, and the entering into contracts 
or compacts with respect thereto. 

MR. CLAGETT: Yes, that is our intent, and I 
think you can boil that down to the simple phrase, and 
agreements relative thereto. 

THE CHAIRMAN: Mr. Case? 

MR. CASE: Mr. Chairman, 1 think this might 
conceivably be a dangerous thing, particularly number two, 
which deals, as I understand with, let's say, the City 
of Rockville, cooperating with Montgomery County, or with 
Y/ashington Suburban Sanitary Con-mission. Just as a mat- 
ter of background, I would think that Mr. Sayre is right 
on this, that if you grant a full measure of authority to 
the Counties, this ought to take care of it, without more, 
and by providing you have to get the General Assembly to 
agree on this, I think you are pretty restrictive on the 
local subdivisions. A case in point: The Washirgton 



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1 Suburban Sanitary Commission today has a very elaborate, 

2 intricate agreement with the District of Columbia for 

3 the receipt by the District and treatment of sev7erage, 

4r because all of the sewerage in the V/ashington Metropolitan 

5 Area is handled at the District of Columbia Blue Plains 
Plant on the Potomac River. To complicate the matter 
further, the City of Rockville has two very intricate 

8 contracts with the Washington Suburban Sanitary Commission, 

9 which in turn refer by reference and incorporate by 

10 reference the contract which the VJashington Suburban 

11 Sanitary Commission has with the District of Columbia. 

12 Now, it is hard enough to work out these agreements with 

13 the various political agencies involved, and I have some 
14- knowledgeability of this because I have negotiated, have 

15 been for a year negotiating one of these contracts, 

16 but certainly nobody has ever thought, and this is the 

17 first time it has ever occurred to me, that the City of 

18 Rockville, for example, could not contract with Washing- 

19 ton Suburban Sanitary Commission and/or the District of 

20 Columbia for this purpose, and I submit to you that to 

21 provide, as this would sef.n to provide, that after you 



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1 get the contract made, you have to go and get it approved 

2 by the General Assembly, opens up all kinds of Pandora's 

3 bor.es, and I think it V70uld be very inadvisable from the 

4 standpoint of those political subdivisions. 

5 THE CHAIRMAN: I take it your question, if I 

6 follow this, is not with respect to the authorization ^to 

7 both the State and the Counties here, but simply to the 

8 qualification in Section 2 that it must be with the 

9 approval of the General Assembly. 

10 MR. CASE: That is right. I go further and say 

H I really don't think you need anything in here because 

12 with their inherent powers as political entities, it 

13 seems to me they have the right to make contracts. 

14 MR o CLAGETT: I would like to answer that 

15 before we get away from it, because I think there may be 

16 a slight misreading here. Approval would only be required 

17 when you are dealing with agreements outside the boundaries 

18 of the State. Now, assuming that that is what you meant, 

19 we do feel that the General Assembly could take care of 

it very easily by a proper general statute, and this, 

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I think we are aware of the fact that really, if anything, 
it imposes a degree of restriction. 

MR. CASE : It does . 

MR. CLAGETT: It does. That is true. Because 
of the fact that we want to emphasize this type of ap- 
proach to the solution of urban problems, which are 
becoming ever more complex and multiple, we felt that 
this language should be here, and it should be specific- 
ally here in order that there not be any restrictions 
insofar as the use of it is concerned, whesas even though 
the broad grant of power is there insofar as the Counties 
are concerned, there still might arise questions and 
hesitancy about using it in dealing with other governments 
interstate . 

MR. CASE: What worries me about this, Hal, is 
that it could conceivably be interpreted to require that 
each contract or agreement that is made would require 
legislative approval. 

MR CLAGETT: And that was one of the factors 
that we considered at the time and are aware of, but we 
thought that nevertheless that was not too undesirable, 



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because of the fact that the General Assembly, if it 
became a restriction, could take care of it. 

MR. CASE: I can tell you right now as a prac- 
tical matter, it would be very undesirable in your 
locality, because you have got a myriad of things which 
Washington Suburban Sanitary Commission contract with the 
District of Columbia on -- trash removal is another. 
There are places where it does this. The Washington 
Sanitary Suburban Commission Act gives in of itself a 
broad grant of authority to permit Washington Sanitary 
Suburban Commission to contract with the District of 
Columbia, but we don't have, to go back to the Legislature 
each tine we make one of these contracts. This I am 
afraid would require that to be done. I think this 
would be very bad , 

MR. CLAGET-T: I might point out this could 
be, this language could make such requirement, but it also 
could do the other way. 

THE CHAIRMAN: Mr. Clagett, let me ask a ques- 
tion for clarification. What provision of the proposed 
Constitution or provisions give rise to any doubt of the 



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power of the State to contract? 

MR. CLAGETT: None. 

THE CHAIRMAN: What provisions of the proposed 
Constitution would give any doubt as to, give rise to 
any doubt as to the power of the Counties or other local 
subdivisions to enter into contracts? 

MR. CLAGETT: None. 

THE CHAIRMAN: Mr. Haile? 

MR. HAILE: I understand this from a historical 
framework. The courts have held that the powers of political 
subdivisions rest on those powers which are expressly 
given to them by the State, and therefore have on occasion 
struck do-.jn agreements. 

THE CHAIRMAN: Yes, but that is under a concept 
quite the reverse of what we are talking about, so far as 
Counties are concerned at least. 

MR. HAILE: My support of this is to clarify 
that and to advise the courts that there is nothing in 
our Constitution, if this is adopted — 

MR. CLAGETT: I would like to emphasize — 

THE CHAI ':: Let Mr. Haile finish. 



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1 MR. HAILE: -- that under this concept these 

2 subdivisions do have power to contract even though it is 

3 not specifically mentioned one way or the other in our 

4 Constitution. It is to the reverse, the judicial trend. 

5 THE CHAIRMAN: Conversely to what I just said, 

6 if regional governments are created, they would be by 

7 express power rather than by the reserve power method 

8 such as we provide for the Counties. 

9 MR. HAILE: There wouldn't have to be an ex- 

10 press power to contract if this is part of the Constitu- 

11 tion. 

12 THE CHAIRMAN: Mr. Clagett? 

13 MR. CLAGETT: I would like to emphasize exact- 
ly ly what Mr. Halle has said, and that in doing so, 

15 emphasize the answers that I have just given to your two 

16 previous questions, because by this provision we clarify 
IV the avenue rather than raise such questions, which might 

18 take a considerable amount of time and study to answer. 

19 THE CHAIRMAN: Mr. Sayre? 
. SAYRE: The cv itary in the model says 

21 that it is 1 ' ' "esence of this kind of 



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Article, referring to different language now, will serve 

2 the useful purpose of stressing intergovernmental coopera- 

3 tion, which appears to offer the best means of solving 
* the increasingly difficult urban problems straddling 

5 political boundary lines. 

^ In other words, they said that this Article 

is not necessary, but it would serve as a guideline. 

8 Here, if we left this present language out 

altogether, it still does not prevent the Legislature 

from enacting through its inherent power restrictions 

^ upon the Counties, as I understand it. Isn't that true? 

12 MR. CLAGETT: That is correct. 

13 THE CHAIRMAN: So I don't see why we have to 
1* have language at all on this point unless we wanted to 
15 have a positive note on cooperation. To me, this is a 
16 
17 i V70uld like to ask along that line another 

question, Mr. Clagett, or Mr. Howard. In many respects 
i9 the use of the District of Columbia as an example is 
2 ^ confusing to me because you don't have to take into con 

sideration the compact clause of the Federal Constitution,! 



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but thinking instead of another State, Virginia, 
Pennsylvania, Delav7are, any of them, can you tell us, would 
there be any question under the Federal Constitution as 
to the right of a County in Maryland to enter into a 
contract or compact with a County of Pennsylvania or 
Delaware, for instance? Is this a compact between States 
under the compact clause of the Federal Constitution? 

MR. CLAGETT: Frankly, I don't know the answer. j 

MR. HOWARD: I have not had an opportunity to 
look into that. 

MR. CLAGETT: Do you know, Dr. Burdette? 

DR. BURDETTE: No. I know the Appalachian 
Commission people tell me they are now doing things that 
a few years ago would have been thought to require a 
compact, but I don't know more than that. 

THE CHAIRMAN: Mr. Delia? 

MR. DELIA: In the compact that we worked out 
between Virginia, the District of Columbia and Maryland 
on the mass transit system, that had to come before the 
General Assembly; both Virginia and also Maryland, and 
with the Congressional District and the District of 



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1 Columbia area to approve. 

£ THE CHAIRMAN: The difficulty is you are talk- 

3 ing about the District of Columbia which isn't a State. 

MR. DELLA : I was thinking in this term, 

5 though, because it only encompassed a couple of Counties 

6 in Maryland, and the Tenth District of Virginia in Vir- 

7 ginia. They still had to go before the General Assembly 
° in those States. I would assume that this same provision 

would apply if you were going to work out a compact 

10 between Maryland and Hagerstown area with Chambersburg 

11 and Pennsylvania, wouldn't it? 

12 THE CHAIRMAN: I would think there are dif- 
* 3 ferences such as Mr. Haile pointed out. 

" Any further discussion? 

15 MR. CASE: Mr. Chairman, if this is merely to 

16 De declaratory, to strengthen the right of cooperation, 
1' and since I am genuinely disturbed by this business about 

the approval of the General Assembly, for reasons I have 
1* just stated, because I think that is a limiting effect 

rather than just a declaratory effect in the right of 
Counties to cooperate among themselves, I would move that 

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the words, with the approval of the General Assembly by 

•' law, be eliminated from Subsection (2) . 

b MR. HAILE : I would second that. 

MR. CLAGETT: I would very heartily agree 

: with that, but I don't know that that complies with the 

resolution that I read, that was passed back on the 
September 20 meeting. I would concur with that. 

- THE CHAIRMAN: Again, as a matter of informa- 

9 tion rathar than suggestion, because I have no feeling 

I 

10 about this , would it be better to do as suggested or i 

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H instead of that, to do that, but add to the opening phrase ■ 

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12 after the word , prohibit, the phrase, such as, in such 

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13 manner as may be provided by lav;. 

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14 MR. DELIA: That would be better. 

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15 THE CHAIRMAN: Nothing in this Constitution 

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16 shall be construed to prohibit, in such manner as may be 

17 provided by law, the cooperation of the government, et 

18 cetera . 

19 MR, CASE: I don't understand. What docs that 

20 j add? 

21 .. CLAGETT: T. think that is putting 



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the restriction back in that we \7ere trying to take out. 

THE CHAIRMAN: What I was thinking, suppose the 
General Assembly wants to pass a general law forbidding 
Counties of Maryland from entering into contractual arrang 
men ts with Counties of another State. 

MR. CLAGETT: It could do so now under a 
general public lav;. 

THE CHAIRMAN: Yes, but if you put this pro- 
vision in, are you throwing doubt on the power of the 
General Assembly to enact prohibitory legislation? 

MR. CLAGETT: No. 

MR. CASE: I wouldn't think so. 

THE CHAIRMAN: All right. 

JUDGE ADKINS: Mr. Chairman, in view of the 
answer to your earlier two direct questions, whether or 
not there was anything in the Constitution which cast 
any doubt on this power, the answer was no, why do we 
confuse what appears to be a clear situation with this 
language, which in my judgment can only serve to cloud 
the issue? Why do we — 

MR CASE: Just for emphasis. That is the 



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1 answer, merely to emphasize that they can do it. 

2 MR. CLAGETT: I might point out that many, 

3 many persons do have questions, and it is in order to 

4 remove those questions and use this as a means of approach 

5 that we want it in here, and we had the benefit of the 

6 model and its comment already made available to us and 

7 Dean Fordham of the Pennsylvania Lav? School was specifical 

8 ly interrogated by the Committee when he appeared before 

9 it with respect to this and strongly recommended that 

10 notwithstanding the objections that have been raised here, 

11 such as that there is nothing in the Constitution else- 

12 where that would prohibit it, nevertheless it is desirable 

13 to include it and remove the questions which might arise. 

14 JUDGE ADKINS: I think the questions which are 

15 likely to arise, not constitutional but inherent of the 

16 powers in local subdivisions, irrespective of constitu- 

17 tional, if that is the existing problem, you are not help- 

18 ing that with this language. It seems to me you are 

19 beating a dead horse with this language. If you want to 

20 be helpful in the situation, would not it be better to 

21 turn it around and state positively that they shall have 



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1 these powers , which clarifies then the local, the prob- 

* lems arising extra in the Constitution, as well as those 

3 under the Constitution? 

MR. CLAGETT: That is why I would heartily 
5 agree to the removal of the first phrase in Subsection 

° (2), and simply have - 

7 JUDGE ADKINS: That doesn't answer my question 

My problem is related to the very introductory language 
there, nothing in this Constitution shall be construed 
to prohibit. All that says is that it may be somewhere 
else, but there is nothing in this document. 
x * MR. MARTINEAU: If we said it, we didn't mean 

15 it. 

14 JUDGE ADKINS: Yes. I don't know a thing 



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: about this field. If the problems arise, as I sense they 

16 I do from this discussion outside of the Constitution, and 

17 in the area of municipal, right of municipalities to 
contract, if you want to remove that doubt, then you had 
better state it positively. If you are not trying to 
effect that doubt, then why state it at all? T h a t is 

my point. 



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MR. CLAGETT: I might give this reply. With 
respect to the municipalities we have taken care of that 
insofar as the control over the municipalities by the 
Counties, so the Counties could by lav; restrict the 
municipalities if they saw fit to do so. 

MR. SAYRE: Is that really clear, that they 
could? Take Rockville. Could Montgomery County restrict 
Rockville right now? 

MR. CLAGETT: It could not abrogate any of 
its existing powers without its consent or the consent 
of the General Assembly. The answer to that is a 
double one. 

MR. SAYRE: But let's take ten years from now, 
Rockville is a viable municipal government. Ithas neither 
annexed property nor changed any of its powers . 

THE CHAIRMAN: The answer is the same. If it 
has the power when the Constitution goes into effect, 
it can't be taken away without its consent or that of 
the General Assembly. If it doesn't have the power, then 
it can be restricted. 

MR. SAYRE: That is my understanding. Here is 



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one that would have the power. 

2 THE CHAIRMAN: I don't know whether it does or 

3 it doesn't. 

4 MR. CASE: I hope it does. 

5 MR. CLAGETT: I think it does. It has used 

6 it , so it must have it. 

7 THE CHAIRMAN: Mr. Gentry? 

8 MR. GENTRY: Speaking in favor of deletion of 

9 the complete Article here, I point out that as to number 

10 one, there certainly is no question that the State has the 

11 sovereign power, has all power necessary to contract with 

12 another State, under our present Constitution, with regard 

13 to the Potomac River compact and the others. As to 

14 number two , whether you hedge that in the opening phrase 

15 or down in Section 2, with approval of the General Assem- 

16 bly, there you are asking the General Assembly to pass 

17 special legislation which would take it away somewhere 

18 else unless you do it by some prior general statute, which 

19 would just give a blanket authority, and would hove no 

20 relation to a specific case and a specific contract, so 
I think you have defeated the purpose of helping the 



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1 General Assembly to Statewide act by hedging this number 

2 two, and with the hedge, you might just as well leave it 

3 out because they have that authority by reason of giving 

4 the full powers unless taken away, otherwise taken away. 

5 You have given that already to localities. 

6 THE CHAIRMAN: Dr. Michener? 

7 DR. MICHENER: Nothing any more. 

8 THE CHAIRMAN: There seem to be three possible 

9 points of view, one, that expressed in the document as it 
1° stands now, the other, that expressed in the motion, that 

11 is, to adopt the document but without the qualifying 

12 phrase in Section 2; thirdly, to rephrase the whole 

13 Section in terms of an affirmative grant of power. 

14 I will rule that the pending motion -- 

15 MR. MARTINEAU: Isn't there another one? 

16 DR. BARD: Leave it out entirely. 

17 THE CHAIRMAN: I thought I did mention that, 

18 but certainly, I will rule that this motion goes only to 

I 

19 the question of deleting this phrase, and anyone desiring 

20 to move after that, cither to amend, to cast it in an 
affirmative language or to delete entirely, we can submit 



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that as a separate motion. Are you ready for the ques- 
tion? 

DR. BARD: Yes. 

THE CHAIRMAN: The question arises on the 
deletion from Section 2, or Subsection 2, the beginning 
phrase, with the approval of the General Assembly by law. 
A vote Aye is a vote in favor of the deletion of that 
phrase. It is not necessarily a vote in favor of the 
approval of the Section as then changed. Are you ready 
for the question? All those in favor, signify by saying 
Aye. Contrary; no. The Ayes have it unanimously, so 
the phrase is deleted. 

Now, I will recognize anyone to make a motion. 
Mrs. Bo the? 

MRS. BOTHE: I move deletion of the entire 
Section . 

MR. GENTRY: Second. 

THE CHAIRMAN: Any further discussion? 

Mr. Clagett? 

MR. CLAGETT: Mr. Chairman, I would again urge 

very strongly that this motion be defeated, because this 



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action of your Committee is being taken after considerable! 
time devoted to consideration of the question, and along 
that line, appreciating the importance of having a clear- 
cut statement that nothing in this Constitution shall be 
construed to prohibit cooperation. 

Now, the v;hole of our discussion has been what 
does, and we have answered that as far as we know, there 
is no restriction in the Constitution, but we have been 
working on this very document for a year and a half to 
arrive at that answer. 

What we are trying to do here to to give a 
guide and a quick guide to legislators who will be acting 
in this area and here they can go to the document, they 
can find the clear language, they can then go ahead and 
act, without any further question or delay. 

It has also been strongly urged by eminent 
authority that this is a useful device to clarify and is 
one which should be in the Constitution, so we would 
strongly urge that it be included. It is not going to do 
any damage, and it could do good. 

MR SAYRZ: Mr. Chairman? 



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1 THE CHAIRMAN: Mr. Sayre. 

2 MR. SAYRE: The motion was to delete this Sec- 

3 tion or this Article. I wonder if the maker of the 
4r motion would say to delete all this language, and then we 

5 could discuss any other language. 

6 THE CHAIRMAN: I will rule that the vote on 

7 this motion does not preclude a motion to recast the 

8 Section in affirmative language, as Judge Adkins suggested 

9 or any other substitute. At the moment, the question is 

10 merely to delete this particular Section. 

11 MRS. BOTHE: The intention of the motion was 

12 the subject matter rather than the wording. I will leave 

13 it to the Chairman what the effect of the vote would be. 

14 THE CHAIRMAN: If we are going to proceed 

15 according to parliamentary procedure, we would have to 

16 consider motions to amend. I was merely trying to save 

17 time. I have no idea whether anyone desires to move to 

18 recast the language in affirmative form. Judge Adkins, 

19 did you have in mind doing so? 

20 JUDGE ADKINS: No, sir, not if this motion 



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THE CHAIRMAN: Did you, Mr. Sayre? 

MR. SAYRE: I thought that I would, on the 
positive, yes. 

THE CHAIRMAN: To do what? 

MR. SAYRE: Move this whole Section more in 
line with what the model Constitution says. 

THE CHAIRMAN: That is a little too vague, 
to do what? 

MR. SAYRE: You mean specific wording? 

THE CHAIRMAN: Not specific wording necessarily 

MR. SAYRE: To say nothing in this Article and 
then, let's see, we have taken out the negative aspect of 
this. What I wanted to do was confine this action, 
except on existing cities, or municipalities, to any type 
of inter or intrastate cooperation agreements. 

THE CHAIRMAN: This Section doesn't deal with 
intrastate action. This is only interstate action. 

MR. SAYRE: Yes, this is what I was going to 
put in, both those, inter and intra. 

THE CHAIRMAN: I am lost. You want to make a 



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otion as a subs titute, and them maybe I will follow what 



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1 you have in mind. 

2 MR. SAYRE: Something of that wording was in 

3 the previous motion that was tabled. 

4 MR. CLAGETT: I think maybe I can answer this. 

5 We have taken care of the intrastate in the separate 

6 provision in Section 11.07 of Article XI, so we are 

7 not concerned with that aspect of it. This is simply 

8 the intergovernmental cooperation, and it is so closely 

9 allied with the spirit of the model Constitution, although 

10 it is less positive and less definitive. I would suggest 

11 that since we want to accomplish something rather than 

12 lose the whole hog, we had better let a vote stand Yes or 

13 No, and hope we get a Yes. 

14 THE CHAIRMAN: All right. 

15 Dr. Bard? 

16 DR. BARD: I think there is value at this time 

17 in the history of the country to set forth the declaratory 

18 statem mt , which does give encouragement to in ter govern- 

19 mental cooperation, and this statement does do it . I, 

20 personally, would like to see the wording recast, but I 

21 want to see this kind of a statement set forth here. 



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THE CHAIRMAN: Mrs. Bothe? 

MRS. BOTH: I would suggest that if we do want 
to do this, we ought to put it someplace up in the 
Preamble and leave it out of the body, because this kind 
of expression of what is supposed to be obvious, as 
advocated by the model, I think is extraordinarily dan- 
gerous and inappropriate. It would be well and good, 
perhaps, if Mr. Clagett's statement were true, that this 
were merely a declaration which would do no harm and 
perhaps encourage the cooperation we all want. I don't 
think the statement is accurate. We have had to knock 
one parrt of it out already, and I can see. innumerable 
others arising. A silence is probably the best, will 
probably do more to promote cooperation here in this 
Section. 

MR. CLAGETT: I have always found it a rather 
effective way of solving something, when you are backing 
up against the wall, ask the other side where there is 
anything that is in this language that would justify any 
of these fears and specifically, what? 

MRS. BOTHE: The very fact it has to be put 



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1 in whenever one would otherwise assume it inherent might 
£ flag it as — the idea that it is perhaps necessary to 

have this language, and I am sure the generations to come 
- may not recall that wa only put it here for window 
i dressing. 

MR. CLAGETT: I direct your attention to the 
language itself and again ask the same question, how 
r could they possibly misinterpret what it says here. 
: MRS. BOTHE: I think they might well ask why 

10 it is here at all and in the very act of doing so, re- 

11 quire so;<3 court to tell them where the cooperation that 

12 it encourages could have been proceeded with without in- 

13 struction that it asks for. 

14 THE CHAIRMAN: Any further discussion? 

15 Mr. Bond? 

16 MR. BOND: I just question the fact that a 
County within the State of Maryland can enter into a com- 

- pact with another County over in Pennsylvania or Virginia, 

without anything being in the Constitution. I haven't 
been satisfied on that point. 

THE CHAIRMAN: Any further discussion? 



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Dr. Burdette? 

DR. BURDETTE: Mr. Bond's remark, if I may 
interpret it correctly, that he would feel that the Con- 
stitution must have some kind of language like this, if 
the County is to have such power. Out of the same 
thinking, not so well expressed as he could have been 
inclined to vote against the motion and to keep the 
language in, but the only caveat I have on that, the Chair 
has, I think, raised the same question, but seemed to 
be persuaded by other answers. I would like to raise it 
again. I would just like to be sure that there is nothing 
in the first part of it, in this language, the single 
phrase, nothing in this Constitution shall be construed 
to prohibit, that the Court of Appeals or later to be 
called the Supreme Court, would not get into the position 
of saying that the General Assembly can in no way inter- 
fere with the cooperation of the government of the State, 
or in no way interfere with the cooperation of the 
government of any County, et cetera. That one would 
bother me a whole lot. 

THE CHAIRMAN: I was going to comment on that, 



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■"■ Dr. Burdette, in stating my own views, which I didn't want 

* to do until the rest of the debate had finished. Maybe 

3 I can do it now and clarify it. 

MR. CASE: Why don't you rule the debate is 

5 finished? I think that is a very salutory ruling. 

6 MR SAYPvE : There was a question I wanted to 

' ask before your comments, to see if it has been answered. 

8 THE CHAIRMAN: I think this kind of provision 

* is clearly at odds with everything we have been trying 

to do in the Constitution. Nevertheless, I personally 



10 



am persuaded that in this area where it is going to 
"^ become so absolutely essential, that solutions to metro- 

13 politan problems that don't limit themselves to State 

14 and County lines, be worked out, that there is a purpose 
!5 to be served in having the Constitution give its blessing 
* 6 to such things, at least to the extent of indicating 
17 quite clearly that there is no intention at all to restrict 
* 8 or prohibit. I still have in my own mind the doubt that 
19 gave rise to my earlier question, and I think that I would 

hesitate to see the Section stay as it is now without 
some phrase being added to make it abundantly clear that 



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the General Assembly, by general law, could regulate 
the power of the political subdivisions to enter into 
interstate compacts. 

I would think that without this provision that 
right would be clear under the pov?er to, by general law, 
restrict the powers granted to political subdivision, 
but when you then say in this Section that nothing in this 
Constitution shall be construed to prohibit the coopera- 
tion of any County with another State, I am concerned that 
that overrides the other provision. 

I would announce that a vote on this motion, 
which is a motion to delete, if it fails, does not 
necessarily mean approval of the Section as presently 
phrased, and the matter would then be before the Commis- 
sion for further amendment, but in view of the statements 
that no one has any different kind of a substitute to 
offer than that, I would also rule that if the motion to 
delete carries, that it means that there should be no 
provision on the subject at all in the Constitution. 

Is there any objection to that procedure? 

Jud^e Adkins? 



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1 JUDGE ADKINS : No objection, except that may 

2 I change my mind and offer a substitute motion, or would 

3 you prefer that I hold it? 

4 THE CHAIRMAN: I don't care. Go ahead. 

5 MR, CLAGETT: I would like to hear it. 

6 JUDGE ADKINS: I would propose the first sen- 

7 tence of the Section be amended to read as follows : This 

8 Constitution shall be construed to permit, unless other- 

9 wise prohibited by law; 

10 Paragraph 1 and the rest of the sentence, or 

11 the rest of the Section, as it is. 

12 MR. CLAGETT: I think that is a very good 

13 suggestion. I think that is getting very close. It re- 

14 moves the contradiction, or it removes the possible in- 

15 consistency that Dr. Burdette has raised and which you 

16 have raised. 

17 DR. BARD: Will you state that again, please? 

18 JUDGE ADKINS: This Constitution shall be 

19 construed to permit, unless otherwise prohibited by law: 

20 Paragraph 1. 

21 THE CHAIRMAN: Could I suggest one thing? I 



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still have one little worry gnawing at my mind, unless 

2 and to the extent otherwise prohibited by law. I just 

3 didn't want the idea that the law would have to say 

4 you can or you can't, but it could lay down guidelines. 

5 MR. CLAGETT: Let me hear that again. 

6 THE CHAIRMAN: This Constitution shall be con- 

7 strued to permit, and unless and to the extent otherwise 

8 prohibited by law, 1 and 2. Is that right, Judge Adkins? 

9 JUDGE ADKINS: Yes. 

10 THE CHAIRMAN: Mrs. Bothe, do you accept the 

11 amendment? 

12 MRS. BOTHE: I would like a vote on the issue. 

13 I still feel it clouds it. 

14 THE CHAIRMAN: Is there a second? 

15 MR SAYRE: Yes. 

16 THE CHAIRMAN: Then the question will arise 

17 on the motion to substitute. 

18 Mr. Gentry? 

19 MR. GENTRY: May I call your attention to 

20 Section 11.06, which says exactly what we are driving at, 

21 but it is intrastate, and couldn't you say, or any other 



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State or the Counties thereof, and put it right into 
6 11.06, and eliminate this? 
5 THE CHAIRMAN: What is the language you are 

referring to? 
5 MR. GENTRY: It reads, any County, other, may 

except to the extent prohibited by lav/, agree with the 
' State, or any other State, or County, civil division or 
municipal corporation thereof, for the joint administra- 
tion of any of their functions and powers and the sharing 
of costs thereof, and title it, intra and interstate 
intergovernmental agreements. 

MR. CLAGETT: The Committee has considered 
* 3 that possibility, and decided against that approach. We 

would like to have the intrastate clear and all right 
** where, it is and the interstate given an emphasis by being 

* 6 a separate Article. In lieu of getting nothing in there, 
■*•' I suppose we would have to compromise back because what 

you are saying was the original position of the Committee,! 
and then abandon in part by the action of the Commission 
when considering it, and later further consideration by 
the Committee, but I would rather hold to the change of 



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language offered by Judge Adkins, because I think that 
gets to the intent and an expression of the effort of 
the Committee, what we would like to do. 

THE CHAIRMAN: All right. Is there any further 
discussion of the substitute? The question will arise 
then on the substitution for the pending motion of a 
motion to approve this Section, but amend the first sen- 
tence to read, this Constitution shall be construed to 
permit, and except to the extent otherwise prohibited by 
lav;, 1 and 2. 

MR. HAILE: I think you omitted the word, 
unless . 

DR. MICHENER: Why couldn't you say, except to 
the extent prohibited by law? 

THE CHAIRMAN: Without trying to phrase it 
exactly, let me state the first sentence again: This 
Constitution shall be construed to permit, and unless 
and except to the extent otherwise prohibited by law, 
1 and 2. A vote Aye is a vote to substitute that motion 
for the pending motion. Are you ready for the question? 
All in favor of the substitution of that motion for the 



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pending motion, signify by a show of hands. 

MR BROOKS: Thirteen. 

THE CHAIRMAN: Contrary? The motion carries, 
13 to 2. The question now arises on the substitute 
motion. Is there any further discussion? 

MR. SAYRE: How does Line 1 read? 

THE CHAIRMAN: This Constitution shall be con- 
strued to permit, and unless and except to the extent other- 
wise prohibited by law, 1 and 2. 

MR. SAYRE: It is 1 I want. 

THE CHAIRMAN: One is as typed on the paper. 

MR. SAYRE: I thought we had something, and 
other agreements, or the word , agreement, or something 
added in there? 

THE CHAIRMAN: No, just as typed. 

DR. BURDETTE: Except with the approval of the 
General Assembly. 

THE CHAIRMAN: Out of 2, we have already de- 
leted the phrase, with the approval of the General Assembly 
by law. 

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1 a word, and agreements or something to that effect? 

2 THE CHAIRMAN: No, discussion, but no motion 

3 to amend the language . 

4 MR. SAYRE: Was there a cloud as to what 

5 cooperation maant here? 

6 THE CHAIRMAN: We discussed it for about 20 

7 minutes, but whether there was a cloud, you would have 

8 to decide. 

9 MR. SAYRE: I thought that there was in most 

10 of the people's minds, unless wa had it. 

11 MR. CLAGETT: No. 

12 THE CHAIRMAN: Are you ready for the question? 

13 MR. BROOKS: Just one additional suggestion: 

14 That first 15.ne might read, this Constitution shall permit 

15 except to the extent prohibited by law, 1 and 2. 

16 THE CHAIRMAN: That becomes a stylistic change. 

17 You mean, shall be construed. I would assume that the 

18 Committee on Style could do that, or unless there is ob- 

19 jection, we can use that language. Do you want to use 

20 that? 

21 JUDGE ADKINS: Perfectly all right with me, 



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Mr. Chairman. 

THE CHAIRMAN: The question arises on the 
motion to approve this Section, except that the first 
clause shall read, this Constitution shall permit -- 

MR. BROOKS: Except to the extent prohibited 
by lav; . 

THE CHAIRMAN: -- except to the extent pro- 
hibited by law, 1, as typed, with the "s" off of govern- 
ments; 2, as typed, with the deletion of the phrase, with 
the approval of the General Assembly by law. 

DR. BURDETTE: Why do you want to take the "s" 
off governments? 

THE CHAIRMAN: That was done quite some time 



ago. 



MR CLAGETT: The Style Committee can put it 
back. 

THE CHAIRMAN: Yes. Are you ready for the 
question? All those in favor, signify by saying Aye. Con- 
trary, No. The Ayes have it. 

That concludes your presentation of Artie" 

XII, Mr. Clagett? 



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MR. CLAGETT: Yes, sir. 

THE CHAIRMAN: Let me say that I am bold enough 
at this hour to prognosticate that we will not have an 
evening session, and I would be bold enough to say that 
unless I am sadly mistaken, we should be able to finish 
within the next 30 to 40 minutes. 

MR. CLAGETT: We will stick with you. 

THE CHAIRMAN: Mr. Martineau? 

MR. MARTINEAU: Mr. Chairman, do you want me 
to first take up the matter of the term of judges, or do 
you wish to approve the changes in the Report and then go 
to the question of term? 

THE CHAIRMAN: Let's take up the changes, 
because I think you can move through those very quickly, 
and then we can consider the term. 

MR. MARTINEAU: I hope so. 

17 

I would run through this to indicate the changer 

to you from the Sixth Report. The first one is in Sec- 
tion 3 on Page 2, which is ne rely a correction I mentioned 
to you at the last meeting, deletion of the word, associate 1 , 
in the second line of Section 3B. 



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THE CHAIRMAN: These changes are indicated 
in that instance by strike out? 

MR. MAKTINEAU: That is right. The next 
change is on Page 3, in Section 5C . This was an effort 
to meet objections of both the State Bar Association 
and of the Judicial Conference Committee and of the 
Supreme Bench of Baltimore City with respect to the powers 
of Coinissioners . There was an effort both to make cer- 
tain that the judges could exercise powers with respect 
to arrest, bail, collateral and incarceration as well as 
Commissioners and also to make sure that the Commissioners 
would not be overly restricted by the language in the 
Constitution as to the powers that they could exercise 
in this field. 

The language now is intended to read, Com- 
missioners may exercise only such powers with respect to 
arrest, bail, collateral and incarceration pending hearing 
as may be prescribed exclusively by rule. 

I might ask as a matter of the English question 
or a question of style v.hether, only, should be before 
the word, exercise, so as to indicate clearly that the 



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Commissioners may have powers only in this field. I 
don't know whether this is so. 

THE CHAIRMAN: May I make a suggestion here? 
I am troubled by this language on the matter of arrange- 
ment and yet I think it is really a question for the 
Committee on Style, as is also your question. The fear 
I have, reading this now, is that, and I think this is 



my own -- 



MR. MARTINEAU: If you weren't going to say it, 



I was going to say it. 

THE CHAIRMAN: — but the fear I have is that 

this could be read to mean that the Commissioners may 

in 
exercise/these particular fields only powers prescribed 

by rule, but in other fields they could have other powers. 

That is not intended, as I understand. 

MR. MARTINEAU: That is why I mentioned chang- 
ing the word, only. 

THE CHAIRMAN: Can we say that the sense of the 
Section is that the Commissioners shall exercise powers 
only in these fields andthstthe extent to which they 
exercise the powers shell be prescribed by rule. 



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MR. MARTINEAU: The, only, applies both to 
the field of powers and to the method of exercise of 



powers . 



powers 



DR. BURDETTE: If you want them to have other 



THE CHAIRMAN: We do not. We want to make it 
clear that they have powers only with respect to arrest, 
bail, collateral and incarceration pending hearing 
and that they have only powers in those areas to the 
extent permitted by rule, so we would take it that the 
language is intended to convey that meaning and the Com- 
mittee on Style can rearrange it. 

MR. MARTINEAU: Yes. 

MR. BOND: Mr. Chairman, with a great deal of 
trepidation, I ask this question: It is true, is it not, 
that as far as the type of offenses and punishment, that 
will still be in the Legislature's hands, is that correct? 

MR e MARTINEAU: Yes. 

MR. BOND: Am I also correct that the Committee 
definitely doesn't want to do anything as to allocation 
of powers of Commissioners? You don't want to have the 



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Legislature have anything to do with that. You want the 
government exclusively by rule, is that correct? 

THE CHAIRMAN: That is correct. 

MR. BOND: I disagree, but I am not going to 
fight that battle. 

MRS. BOTHE: This is perhaps a stylistic 
caveat, too, but the change in language, where specifical- 
ly before we enumerated the actual powers, and are 
now speaking in generalities with respect to certain 
areas, on reading it again, I have a certain fear that the 
words are a little bit vague, with respect to arrest 
might include more than arrest warrants , and with respect 
to bail more than setting bail. 

THE CHAIRMAN: I think the intent of the 
Committee, as I understood it the other evening was to 
let that vagueness be set at rest by rule, and I think 
you could, perhaps, rephrase the clause to do that by 
saying, for instance, that the Commissioners may exercise 
powers only with respect to arrest, bail, collateral, 
incarceration pending hearing and to the extent as may be 
prescribed exclusively by rule. 



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1 MRS. BOTHE: I would like to find some other 

2 words than, with respect to, that would still give some 

3 latitude to the rule. I know, 1 am on the Committee, and 

4 I didn*t come up with anything better than the other 

5 night. 

6 THE CHAIRMAN: Let me suggest, if you dream up 

7 another one, you tell the Committee on Style, and I think 

8 they could help you. 

9 MR. MARTINEAU: There is an intentional vague- 

10 ness here, because one of the criticisms of our previous 

11 language was that this was so restrictive that it might 

12 be interpreted to mean the Commissioners could not exer- 

13 cise some powers that they might be intended to exercise. 

14 That is, could they, in lieu of, or where bail was for- 

15 feited for some reason, and then commit a person to jail ■ 

16 the way our language previously read, there was some 

17 question raised by a number of lawyers as to whether they 

18 could do this. We want to leave this intentionally 
vague, so that the Supreme Court may by rule define their 
powars with precision and with some freedom of changing 
it as circumstances may arise. 



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THE CHAIRMAN: Next? 

Mr. Sayre? 

MR. SAYRE: If I were to read this as follows: 
Commissioners may, as prescribed -- I didn't say, as may, 
as prescribed exclusively by rule, exercise powers only 
with respect, et cetera, that is what you mean? 

THE CHAIRMAN: That is essentially what is 
meant. Next, Page 5? 

MR. MARTINEAU: The next change is on Page 5, 
at the suggestion made, or as a result of a suggestion 
made at the last meeting: We are changing the phrase, 
judicial office, to the, office of judge, so that there 
is no question but that the phrase does not apply to some- 
thing such as Coiunissioner or something else, which may 
be construed to be a judicial office but isn't actually the 
type office we are talking about . 

DR. BURDETTE : Do you have to say, justice or 
judge? 

MR. MARTINEAU: We went through this before, and 

i 
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it is the Committee's view that the office of judge appl ies 
to both justices and judges. 



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DR. BURDETTE: If I were on a court, I would 
hold that the Constitution made no such provision, no 
provision of any kind with respect to a justice. 

THE CHAIRMAN: Next? 

MR. MARTINEAU: That same change went through 
all of Section A and also in Section B of Section 9. 

The next change is on Page 9, in Section 10, 
with reference to the provision for taking of poll of 
lawyers when a judge is running in a noncompetitive elec- 
tion. The word, shall, was changed to, may, upon the 
suggestion of the State Bar Association Committee, that 
it may arise in the future that such a poll may not be a 
desirable arrangement, and that it should not be made 
an inflexible part of the Constitution. 

We want to have it in here to insure that the 
Supreme Court has the power to conduct such a poll, but 
not make it mandatory if under circumstances that we can- 
not predict now, such a poll should not be held, whether 
it is because of one reason or another, it does more har.i. 



than good . 



MR. Bj'iD: Mr. Chairman, I know that some of 



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the judges are upset about that because they have told 
me so. I think this is begging the issue, whether we 
leave it in or take it out, so you may do it for Judge A, 
and maybe not for Judge B. 

THE CHAIRMAN: That is not what is intended, 
that you may do it for all judges or not do it at all. 

MR MARTINEAU: This is done by rule, so it 
is not a question of an ad hoc termination. 

MRS. BOTHE: Mr. Chairman? 

THE CHAIRMAN: Mrs. Bo the. 

MRS. BOTHE: Mr. Chairman, I, myself, won't 
make any motion to reconsider. I am on the Committee, and i 
the Committee, after reconsidering, determined only to 
make the one word change, but upon looking over this pro- 
vision, particularly in the light of the objections the 
judges are making to it, it suddenly impressed me as being 
rather silly and unnecessary kind of a detail to stick 
in the Constitution. We hcve had to make a very long 
Judiciary Article , partly because of the changes in the 
selection of judges. It is much longer than I would like 
to see it, though I don't see too many ways of cutting it. 



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This is one where I think we could cut out half of a 
Section and put the whole thing in a much more proper 
perspective. I don't think this business of holding 
polls among the lawyers is of constitutional significance. 
I just want to express my change of heart on the subject 
as a Member of the Committee. 

THE CHAIRMAN: You said you do not want to 
make a motion? 

MRS. BOTHE: Not unless somebody else feels 
fit, 1 don't feel it is appropriate for me. 

THE CHAIRMAN: Mr. Clagett? 

MR. CLAGETT: I want to understand clearly, 
Mr. Chairman, this change is one that was made by the 
Committee and not acted on by the Commission? 

MR. MARTINEAU: That is right. 

MR. CLAGETT: I would move the word, may, be 
stricken, and the word, shall, be included in the consti- 
tutional provision. 

THE CHAIRMAN: Is there a second? 

MR. BOND: I will second it. 

THE CHAIRMAN: Any discussion? Do you want to 



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say anything, Mr. Clagett? 

MR. CLAGETT: As one who has had the experience 
of the necessity of such a provision, all that really is 
being called for here is that a judge conduct himself 
with a degree of judicial demeanor consistent with 
the office, and that he be required to extend to attorneys 
practicing before him the same degree of courtesy which 
he has authority to require them to extend toward him. 
If you don't have some such provision as this, I think 
you are going to find that unfortunately, human nature 
being what it is, without deterrent, that it will serious- 
ly reflect upon the relationship between the Bench and the 
Bar. 

THE CHAIRMAN: Any further discussion? 

MR. CLAGETT: I think that states the position. 

THE CHAIRMAN: Further discussion? 

MR. HARGROVE: I think it should be pointed 
out that in the discussion the other evening there was 
some distinction made between perhaps the larger metropoli- 
tan areas and the Counties, where you are dealing with 
come 3000 lawyers in Baltimore City, most of whom do not 



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1 appear before the court at all, and when you get to cer- 

2 tain courts, such as the District Court, which I would 

3 say about 90 per cent of them do not appear, and then 
£ you call upon them to decide whether they do or do not 
I want to continue this judge in office. This is where the 
6 problem begins. It does not appear in many Counties, 

where the association of lawyers is very small. You have 

some as small as ten in number and perhaps it goes up 

3 from there. This is where the problem is, I believe, 

10 and that is one of the reasons why we went to, may, 

11 instead of, shall, because it might appear later that with 

12 such an unwieldy number, this might not be proper, at 

13 least in order. 

14 THE CHAIRMAN: Mr. Bond? 

15 MR. BOND: I would like to say a few judges 

16 expressed to me they don't want to be sitting on the 

17 Bench and running a popularity contest. I think there is 

18 a lot to be said for the statement Mr. Clagett made. 

19 I would also state, thai: our State does nothing. I cannot 

20 see the Supreme Court putting it in for Charles County 
and leaving it out for Caroline County. I don't think it 



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1 will ever go through if you leave the word, may, in. 

2 MR. CLAGETT: The other very strong reason 

3 in back of this, Mr. Chairman, is, I do feel it is the 
responsibility of the lawyers to make known to the public 

i at large the status of a judge's position so far as doing 

6 the job of the judge is concerned. 

THE CHAIRMAN: Any further discussion? 

6 DR. BARD: I would like to ask a question. 

9 THE CHAIRMAN: Dr. Bard? 

10 DR. BARD: Mr. Chairman, I opposed this orig- 

in inally, and now I find that the very group upon whom I 

12 really depended for an answer is divided. 

13 MR MARTINEAU: I think you will find that 

14 always true. 

15 DR. BARD: I know. On this question, the point 

16 i am raising is, can I ask Mr. Clagett whether he would 
- r favor taking the entire sentence out? 

MR. CLAGETT: If it is going to be may, instead j 
of shall, I would answer that in the affirmative. I don't; 
think it would ever do any good. I don't think they 
would ever pass any such rule. I think it has either 



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1 got to be mandatory or you might as well leave it out. 

2 DR. BARD: Would it still be possible for 

3 lawyers to have this kind of a poll informally, as they 

4 often do? 

5 THE CHAIRMAN: Bar Associations could act, yes. 

6 DR. BARD: Then I would like to make a sub- 

7 stitute motion, that we take the entire sentence out. 

8 THE CHAIRMAN: If you don't mind me saying so, 

9 I think we will make better progress to move on the 

10 substitute first. Then you can make your other motion if 

11 you want to. Any further discussion? I would like to 

12 make one very, very brief comment. Mr. Martineau didn't 

13 mention what I think was said, and he can correct me 

14 if I am wrong, that the Bar Association Committee was 

15 unanimous in expressing opposition to this as a mandatory 

16 provision and pointed out what, to me, is the one com- 

17 pelling reason for the change, if there is any compelling 

18 reason, and that is that although I think most lawyers, 

19 and maybe the very great preponderance of lawyers, maybe 

20 after all of them, favor this kind of provision at the 
present time. We recognize that it is an innovation. 



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1 It is something new, and it may be that the Supreme 

2 Court will adopt a rule and provide for it, and then we 

3 find, for some reason, that we don't foresee now, that it 
4- just simply backfires or doesn't serve its purpose. The 

5 thought was that in that situation, the Supreme Court 

6 could say, All right, we won't do it. 

7 I, personally, would be perfectly content to 

8 leave it to the Supreme Court to decide whether, by 

9 general rule, not by election, a particular election, but 

10 by general rule that there will or will not be a poll 

11 because I think, except that difficulties develop that 

12 the Supreme Court would make this provision. Any further 

13 discussion? 

14 MR. MARTINEAU: Mr. Chairman, I might make the 

15 comment that this has been done in other States without 

16 any specific authority by the highest court of the State. 

17 For that reason, I don't feel that merely if we make it 

18 may, rather than shall, that it won't be done. I frankly 
- think it will be done. 
: MRS. BOTHS: Could I ask a question? 

21 THE CH/ II MAN: Yes. 



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MRS. BOTHE: In these States that do have 
lawyer polls, is it in the Constitution? 

MR. MARTINEAU: No. It is not. 

THE CHAIRMAN: All right. Now the question 
arises on the motion to substitute the word shall, for 
the word may, the second word in the next to last sentence 
of Section 10. If the motion carries, or if it does not 
carry, I will recognize anybody to make a further motion 
with respect to the sentence. A vote Aye is a vote in 
favor of substituting the word shall. A vote Nay, is a 
vote in favor of retaining the word, may. All those in 
favor, please signify by a show of hands. 

DR. BURDETTE: This is a vote — 

THE CHAIRMAN: A vote for, shall. Contrary. 

MR, BROOKS: Three. 

THE CHAIRMAN: Contrary? 

MR. BROOKS: Twelve. 

THE CHAIRMAN: The motion fails, 3 to 12. 



Dr. Bard? 



DR. BARD: Mr. Chairman, I would like to move 



that we delete the entire sentence. 



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THE CHAIRMAN: Is there a second? 

MRS. BOTHE: Second. 

MR. BOND: Second. 

THE CHAIRMAN: Is there any discussion? 

MR. MARTINEAU: I would like to comment on 

THE CHAIRMAN: Mr. Martineau? 



MR. MARTINEAU: I certainly think that this 
should be included. It has been included in any draft 
of the Niles Plan that has been submitted so far. It has 
been one so far as I know that has always been one of the 
saving features of the noncompetitive election, that the 
electorate has to have some guide in voting for or 
against a judge who is running in a noncompetitive elec- 
tion. The only reasonable guide that has been developed 
up until now has been a poll of the lawyers , along with 
what other judicial, or any other newspaper or other pub- 
lic groups might come out for or against a particular 
judge. I think this is most important. I think it would 
seriously hurt the chances of having the noncompetitive 
election procedure adopted if no provision is made for 



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this type of procedure, and specifically mentioned in the 
Constitution. For that reason, I would hope that the 
3 motion would fail. 

THE CHAIRMAN: Anything further? 

5 Mr. Clagett? 

6 MR. CLAGETT: I would endorse that and take 
' back the statement that I made to Dr. Bard a little 

: while ago, because I do believe that this is necessary to 
persuade lawyers to go along with this judiciary written 
Article . 

THE CHAIRMAN: Any further discussion? 
Mr. Sayre? 

13 Mr o SAYRE: I have a question here. This poll 

" is to help guide the public in voting, is that right? 

THE CHAIRMAN: That is right. 
I s MR. SAYRE: I appreciate the proper role of 

1^ polling the attorneys. I am just wondering whether it 
should be, whether the pole should be restricted to 
attorneys? 

THE CHAIRMAN: You have a general election, so 
everybody votes. This is merely the views of what 



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supposedly is informed group. 

MR. MARTINEAU: That is the group poll. 

MR. SAYRE : I don't know where else you draw 
the line. 

THE CHAIRMAN: Mrs. Bothe? 

MRS. BOTHE: I would like to comment a little 
further on my view that we should knock this out of 
the Constitution. I understood it was put in there in 
the first place because th-^re was some question that the 
Court of Appeals, by rule, could impose these elections. 
Apparently, they are in other States without constitution- 
al sanction. I don't know why, under our Maryland Con- 
stitution, the Court of Appeals couldn't conduct these 
polls if it saw fit. 

I don't think that the acceptability of the 
noncompetitive election is going to turn on this; just 
because a bunch of lawyers can advise the politicians, I 
don't believe is going to make the politicians any happier 
with the inability to choose the judges. 

The Bar Associations and the Court of Appeals 
could both perform this function. I have no doubt that 



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the lawyers are going to do everything they can to per- 
suade the electorate of the people who are qualified or 
disqualified to continue in office under the system. I 
can't picture the Bar Associations and the organized Bar 
or even the Court of Appeals sitting by particularly if 
a judge that should be deposed is involved. 

The provision is really aimed, I think, more 
against the judge than for the judge. People tend to 
be negative. The choice is only whether he should continue^ 
or not continue, and I am afraid it might very well back- 
fire because of the indifference that usually attends the 
selection of someone who is noncon trovers ial and reason- 
ably competent. For instance, if lawyers refrain from 
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vote or the Court of Appeals. Suppose a judge received 

only a handful, 20, 30 votes in Baltimore City out of 
17 



3000 lawyers eligible to vote for him. Mightn't his 
opponents say, Only 20 or 30 lawyers thought he was fit 
to be retained in office. 

THE CHAIRMAN: There would be some cause to 
say that, I would think, in that situation. 



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MRS. BOTHE: I don't know. I really feel that 
this kind of a provision in the Constitution, it is ad- 
visory only; it doesn't have any necessary effect one 
way or the other. It is just not the kind of thing that 
we ought to implant in the middle of an otherwise very 
explicit and meaningful Judiciary Article. 

THE CHAIRMAN: Any further discussion? 

Dr. Bard? 

DR. BARD: I would like to close it, if I may. 

THE CHAIRMAN: Before you close, I would like 
to make this comment: I think this is a salutary pro- 
vision. I think it is vital, and I say that notwithstand- 
ing the question that exists, that as something new, it 
may be proved later to be not feasible for some reason or 
other, but I think the thing you must keep in mind is this: 
This is purely advisory. It is an opinion expressed to the j 
electorate by a group which should be informed, and a 
group which I think will take the obligation seriously, and| 
you will not have abstention. I think you will have almost' 
every Member of the Bar participating in the poll. What 
you have as the alternate is what you have now, namely, 



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endorsement, or lack of endorsement by lawyers 1 associa- 
tions and in metropolitan areas such as Baltimore, this 
means endorsement or lack of it by the Baltimore City Bar 
Association, the Monumental Bar Association, the Women's 
Bar Association, Plaintiffs Bar Association, Federal Bar 
Association, and numerous others, with the result that 
the electorate is completely confused. They cannot dis- 
tinguish and rightfully cannot distinguish between the 
Baltimore City Bar Association and the Federal Bar Associa- 
tion, or the Plaintiffs Bar Association. 

MR. DELLA: I just wanted to ask a question, 
in view of my questions in the last discussion. Do you 
really believe the lawyers in the State or in Baltimore 
or anywhere really have the nerve to vote against a judge 
and then go before him again with another case? 

THE CHAIRMAN: This would be a secret ballot. 
I haven't the slightest doubt that they would express 
their opinion. 

Mr. Sayre? 

MR. SAYRE: This is an exploratory question 
like the other. In taking a poll of lawyers, and this 



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means every bona fide lawyer in the area affected, 
right -- 

THE CHAIRMAN: As determined by the Supreme 
Court, yes. 

MR. SAYRE : — and yet only maybe 10 per cent 
or 20 per cent of those attorneys appear in court, in 
certain of these areas, how can you have a valid poll 
as to rendering judgment? 

THE CHAIRMAN: Mr. Sayre, I would think it is 

a complete misapprehension to suppose that a lawyer in 

active practice in the metropolitan area who never goes 

into court, thereby has no views or opinion, and proper 

a 
opinions as to the capabilities of/judge, in any large 

office, for instance, you will have a very substantial 
number, perhaps most of the lawyers never go near a 
courtroom, but I assure you that they have decided views 
and they probably are very well informed as to the capa- 
bilities of judges. 

MR. SAYRE: That isn't necessarily confirm 
to judges, in other areas where they are close to court 
actions . 



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THE CHAIRMAN: I didn't follow you. 

MR. SAYRE: Any firm that is following a court 
because of its particular activity, receiving reports, 
you could be an accountant, you could be a lobbyist, you 
could be in a number of fields where you follow what a 
judge does. 

THE CHAIRMAN: This is true. All you are say- 
ing is, there are probably other people who are as in- 
formed as many lawyers. This is true, but by and large, 
the lawyers as a group should be and probably are better 
informed. We are not precluding the chance of any other 
group expressing an opinion. 

Dr. Templeton? 

DR. TEMPLETON: Based upon this same question, 
a small percentage of lawyers, according to Mr. Hargrove, 
actually practice in court. I won't make a further cor.:- 
ment. 

THE CHAIRMAN: This is true. The number in the 
active Bar who actually engage in court by going over and 
trying cases is realtively small. Dick, do you have any 

idea what it would be in Baltimore City? 

X is vary 



_MR — CAS E: I w o uldn't know, Vern o n . U 

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small. 

THE CHAIRMAN: My guess it is not only 15 
per cent of the Bar. 

MRS. BOTHE: You have another problem. I 
practice quite a bit in the Court House, and yet with the 
number of judges we have, I can't really say I know them 
all. Judge Moylan, for instance, in the Juvenile Court, 
I wouldn't be able to pass on him. 

THE CHAIRMAN: I daresay as a result of your con 
versations with other lawyers, you have probably decided 
opinions as to every judge in the Court House. 

MR. CLAGETT: I think that is exactly what 
has been said here, points up that this is really not 
a popularity contest at all. What it really is, is the 
general stature and reputation of the judge insofar as 
competence to perform his judicial duties. That is really 
the gist of what this whole conversation is indicating. 

THE CHAIRMAN: Dr. Bard? 

DR. BARD: I would just like to close with 
four points that I have: One, it seems to me to be a 
procedural matter rather than a substantive one, and in 



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general, we have not included procedural matters within 
the Constitution; two, there seems to be a good deal of 
3 doubt among lawyers and judges about its value. With 
4r 15 minutes one lawyer, a Member of this Commission, has 
changed his mind from a strong position on one side to 
the opposite. If we put it in, there is a mandate to use 
this procedure, and it seems to me to be clearly wrong 
where there is so much division. 

Third, this action, it seems to me, would not 
be in accordance with our general practice, in the: it 
would give special attention to an advisory group, with 

12 a particular interest or skill, and finally, as I see it, 

13 it would set forth the concept of a preliminary voce, 

14 influencing a general vote, and that this preli u ry 

15 vote might be interpreted as a sort of a primary voce. 

16 MR„ DSLLA: Would this provision mean t. 

17 Bar Association would approve the closed shop provision^ 

18 THE CHAIRMAN: This has nothing to do with the 

l 

19 closed shop. Are you ready for the question? The question 

20 I arises on the motion co delete the next to last s enter. 

21 from Section 10. A vote Aye is a vote to delete. A vote 



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Nay leaves the sentence as recommended by the Committee. 

MR. SAYRE : One more question, if I may. 
3 THE CHAIRMAN: Go ahead, please. 

MR. SAYRE: If this were not in, could the. 
3 court still do this by rule? 
6 THE CHAIRMAN: That has been answered. Some 

' States do. Doubt has been expressed as to whether the 

Q 1 

court in Maryland could or would do so. Any further 
discussion? A vote Aye is a vote to delete. A vote Nay 
supports the Committee. All those in favor, that is, 
in favor of deleting the sentence, signify by a show 
of hands . 

13 MR. BROOKS: Five. Six. 

14 THE CHAIRMAN: Contrary? 

15 MR. BROOKS: Nine. 

16 THE CHAIRMAN: The motion is lost, 6 to 9 . 
11 The next one is Page 10. 

18 ! MR. MARTINEAU: The next one is Page 9. It 

just, in Section 11, changes the word, temporary, to 
temporarily, in moving it. This was done at the last 
meeting, and this merely reflects that. 



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THE CHAIRMAN: Page 10. 

MR. MARTINEAU: The next one is Page 10. You 
can see by the previous Section printed above there that 
is now crossed out, the sentence used to read, No judge, 
during his continuance in office and no retired judge 
while receiving any — 

THE CHAIRMAN: Let me shorten. Is this not 
the change that was approved? 

MR. MARTINEAU: This was ordered at the last 
meeting. 

THE CHAIRMAN: There is nothing new in this? 

MR. MARTINEAU: No. It is merely putting the 
last sentence, the last sentence is really the new 

material, No retired judge while engaging in such activities, 

■ 

shall be paid any pension for his judicial service. 

This is to make sure that if he does any of 
these things, he isn't forever -- 

THE CHAIRMAN: The concept isn't new? 

MR. MARTINEAU: No. This was approved at 
the last meeting. 

THE CHAIRMAN: Page 11. 



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MR. MARTINEAU: Page 11 merely changes the 
phrase, taking out, for each division of the District 
Court, and saying, There shall be a Chief Deputy Clerk 
of the District Court in each district. 

THE CHAIRMAN: As indicated on Page 11? 

MR. MARTINEAU: That is correct. That wcs 
also approved at the last meeting. 

THE CHAIRMAN: I think the last piece of busi- 
ness is, I understand, a motion of the Committee for 
reconsideration of one question involved in this Section. 

MR. MARTINEAU: That is correct. I might say, 
what we are talking about here is in Section 10, on 
Page 8, and in Line 3, it provides that every ten years 
after his original standing for office, the judge must 
stand again in a noncompetitive election. Our original 
Committee proposal, as you will recall, was 14. This Com- 
mission voted in August or September, I don't remember 
which, by a vote of 15 to 8, to reduce the term from 14 
years to ten years. We have been requested by the State 
Bar Association Committee and by the Committee on the 
Judicial Conference, of the Judicial Conference unanimously 



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to bring this matter back to the Commission, ask for its 
reconsideration, to change back to the Committee's 
original proposal and have ten years read 14 years. 

The Committee in deciding to raise this matter 
for reconsideration first voted 2 to 2 as to whether no 
bring it back. 

THE CHAIRMAN: Wait just a moment. The first 
matter is the motion to reconsider. You are making such 
a motion to the Committee? 

MR. MARTINEAU: I want to explain why. 

THE CHAIRMAN: All right. 

MR. MARTINEAU: The Committee voted 2 to 2 on 
the question of whether to have this reconsidered. I 
changed my vote to have it 3 to 1, so that the Committee 
would request it, not because I believe that this Com- 
mittee, or that this Commission should change its mind, 
but that I believed that in view of the request made to 
us by the State Bar Association, and the Judicial Con- 
ference that we owed it to them to reconsider chis , in 
view of their comments, and therefore, the Committee re- 
quests that this matter be reconsidered. 



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1 THE CHAIRMAN: Under our rule that is sub- 

* mitted to you without a second because it is made by the 
3 Committee and without debate. 

* I want to make this explanatory statement, 
5 not explanatory, a comment: This provision was approved 
° by the Committee, by the Commission, after very full dis 

7 cuss ion, I think for several hours, on September 20, the 

8 present approval, that is, to reduce the number from 14 

9 years to ten years, being carried by a vote of 15 to 8. 
There are now 16 Members of the Commission present. The 

H question arises on the motion to reconsider. A vote Aye 

12 is an approval reconsideration. It is not necessarily 

13 an approval of the change. 

1^ MR. BOND: A point of information, sir. Do 

15 you think we are ready to vote on this point for re- 

16 consideration? We haven't had asserted to us in any way 
1? what the reasons of the Judicial Conference or the 

1® Maryland Bar were, so I have nothing more than to reaffirm 
the Committee if I have to vote because I have no idea 
of the reason brought before the Committee. 

MR MARTINEAU: They are not new ones. 



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1 THE CHAIRMAN: If the Commission decides to 

2 reconsider, you can have full information on it. 

3 DR. BARD: A point of information. Would 

4 passage of the motion to reconsider necessarily mean re- 

5 considering today? 

6 THE CHAIRMAN: No, sir. I don't see how we 

7 could possible put something -- I won't say we can't. 

8 DR. BARD: The reason why I say that is 

9 because from the data which you just quoted, Mr. Chair - 

10 man, it doesn't seem right to reconsider with such a 

11 small group. 

12 THE CHAIRMAN: That is why I mentioned the 

13 fact, but the difficulty I have is that we could put 

i 

14 this off, and you decide it on the next meeting. Without 

15 a lot of debate, there would be no difficulty. We 

16 discussed it for several hours before. If you reconsider 

17 it at another meeting, you may have the same length of 

18 discussion. We have got other questions to come up and 

19 at some point, we have to stop considering. 

20 DR. BARD: You have answered it. 

21 THE CHAIRMAN: Any further discussion? I don't 



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mean discussion; I mean any further question? The 
question arises on the motion to reconsider the action 
of the Commission in providing in Section 10 that the 
noncompetitive election should be every ten years. A 
vote Aye is a vote in favor of reconsideration. Those 
in favor of reconsideration, signify by a show of hands. 

MR. BROOKS: Four. 

THE CHAIRMAN: Contrary? 

MR BROOKS: Eleven. 

THE CHAIRMAN: The motion loses, 4 to 11. 

Do you have anything further, Mr. Martineau, 
on the Judiciary Article? 

MR. MARTINEAU: Just to say Amen. 

(Whereupon the meeting concluded at 5:40 p.m.) 



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CONSTITUTIONAL CONVENTION COMMISSION 




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Meeting held of the Constitutional Convention 




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Commission on Monday, December 19, 1966, at 2 o'clock 




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p.m., at Room C-211, University of Maryland, School of 




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Law, Baltimore, Maryland. 




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PRESENT : 




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H. Vernon Eney, Esquire, 

Chairman of the Commission 




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Honorable E. Dale Adkins , Jr., Member 
Dr. Harry Bard, Member 




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Calhoun Bond, Esquire, Member 
Mrs. Elsbeth Levy Bothe, Member 




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Dr. Franklin L. Burdette, Member 
Richard W. Case, Esquire, Member 




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Hal C. B. Clagett, Esquire, Member 
Mr. Charles Delia, Member 




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Mrs. Maurice P. (Leah S.) Freed lander, Member 
James 0' Conor Gentry, Esquire, Member 




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Honorable Walter R. Haile, Member 
John R. Hargrove, Esquire, Member 




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Stanford Hoff, Esquire, Member 
Dr. Martin D. Jenkins, Member 




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Robert J. Martineau, Esquire, Member 
Clarence W. Miles, Esquire, Member 




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Edward T. Miller, Esquire, Member 
Charles Mindel, Esquire, Member 




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Mr. E. Phillip Sayre, Member 
Alfred L. Scanlan, Esquire, Member 




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Mr. L. Mercer Smith, Member 
Dr. Furman L. Templeton, Member 




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Reported by: 
M. Wasserman 




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ALSO PRESENT: 



John C. Brooks, Esquire, Executive Director 
Dr. John H. Michener, Reporter for Committee 

on the Legislative Department 
Mr. Lewis A. Noonberg, Reporter for Committee 

on Miscellaneous Provisions 
Dr. Clinton Ivan Wins low, Consultant 



THE CHAIRMAN: Come to order, please. 

As all of you know, we still have not circulated 
|| for approval the Minutes of the last few meetings. This 
has been due to the difficulty in having the transcripts 
gone over and checked, in order to prepare the Minutes. 
This work on the transcripts has now been completed and 
we will send you the Minutes. However, this is not being 
given quite the same priority as work on the draft and, 
therefore, you may not receive them until after the next 
two weeks. At that time, we will ask you to review them 
promptly and write any comments, corrections or additions 
that you may have, because we will not take them up at 
another meeting of the Commission. 

The report of the Secretary, do you have anything 
•to report, Bob? 



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MR. MARTINEAU: I just will affirm that they 
won't be gotten to you within the next two weeks. 

I think we should, now that Judge Adkins is 
here at the beginning of the meeting for the first time, 
the one question that he had -- 

JUDGE ADKINS: I was here at 10 o'clock this 
morning, Bob. 



why 
MR. MARTINEAU: The one question/we have not 

approved the August Minutes was because Judge Adkins 

raised a question as to whether he made a motion. 



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_ 1 Judge, do you recall which that was? 

12 JUDGE ADKINS: No, I will have to look at it 

which I will do before I leave today. 

MR. MARTINEAU: I have a copy of it, if you 
will tell me which one it is, I will check on the trans- 
cript . 

JUDGE ADKINS: Let me look this over. 

MR.. MARTINEAU: I wonder if we couldn't just 
approve the August Minutes subject to deleting Judge Ad- 
kins if it is found to be incorrect. 

THE CHAIRMAN: Any objection to that procedure? 



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, if not, that is what we will do. 



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Judge Adkins , you can do that later, if you 
like, and not pause at the moment. 



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. Next is the report of the Executive Director 

MR. BROOKS: I am not sure whether everyone 
has had a chance to meet the staff members that are here. 
Since we have some Commission members back with us after 
an absence, a number of changes have occurred, so I 



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q think I will reintroduce the staff members with us today. 

, Mrs. VJiegand, our head office secretary who is 

n-jL with us on my right today, who will be taking some notes 

for us , so we will have some notes prior to receiving the 

13 transcript back. Mrs. Estelle Fishbein, who is helping 

14 us with some of the editing, who was at one other meeting 
recently. Buzzy Hettleman, who is sitting down here on 
the far end of the table, who is helping us with some 
of the administrative matters. And two research assist- 
ants, Frank Ralabate in the center on the side and Ken 



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■jq Lasson by the door. 

We redistributed a current list of office and 
on home addresses and phone numbers because we thought many 



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of you -- we had some requests for some up-dated ones 
and thought you would like to have a current list with 
corrections. This is the latest information available 
to us . 

This afternoon, we will have made at 4 o'clock 
a Commission photograph for, hopefully, inclusion in the 
Commission's report. 

If, for any reason, there is any problem with 
the photograph that is made, as an alternative, we are 
contemplating using the individual photographs that you 
sent us earlier in the year. 

Most of you know, probably, whether or not you 
did send such a photograph. I do not have such a list 
with me today. If you haven't, we hope you will, other- 
wise we will be sending you a reminder because we will 
go ahead and get those in hand before making a determina- 
tion as to which photographs we will use. 

Mr. Eney has mentioned that we are in the pro- 
cess still of combining all of the Committee reports. 

We have a draft now on tape on a new Mock 10 



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do the rest of the editing. This will be in your hands 
sometime before the week's end. \\e will probably have the 
stencils finished this afternoon, so you will get those 
Wednesday or Thursday, mail permitting. Mr. Eney. 

THE CHAIRMAN: I have several matters on which 
I would like to report to you. 

Now, first I present apologies from Governor 
Lane who found it impossible to be here this afternoon 
for a number of reasons, one of which is the unfortunate 
illness of Mrs. Lane. He regrets his inability to be pre- 
sent and asked me to extend to each and every member of 
the Commission and the staff his very heartiest wishes 
for a very merry Christmas. 

Next, I would like to report, for the benefit 
of those who, for one reason or another, were unable to 
attend the dinner given to the Commission by Governor 
Tawes, that they missed a very very nice, very pleasant 
and delightful occasion. 

It was very unfortunate that the heavy wet snow 
started in the north-central part of the State because 
that made it really impossible for those members of the 



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Commission living in that end of the State to get down 
to the meeting. 

The rest of us who were there thoroughly enjoyed 
ourselves and enjoyed the time spent with the Governor. 

I also want to report to you that, in my 
opinion at least, and I think this is the opinion of 
practically everyone who was present, the Goucher confer- 
ence on problems of metropolitan areas was a huge success. 

I might add that John and I, and the other mem- 
bers of the staff, and the people at Goucher who planned 
this meeting, had many attacks of butterflies in the week 
before because we had no precedents to guide us . We 
didn't know whether the conference would be a complete 
flop or highly successful. 

We had some very eminent out-of-State people, 
experts if you want to use that term in the field, and 
at the conclusion of their rather brief remarks at the 
introductory part of the program, when we threw the meeting 
open, we didn't know whether we would be met with simply 
dead silence or a real dialogue. 

I am happy to report to you that the converse 



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. was true, we met with a real dialogue, and notwithstand- 
p ing the rather important football game on Saturday after- 
noon, continued until 3:45 Saturday afternoon and adjourn- 
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ed then only because some of the out-of-town members had 

plane commitments 
o 

I think the -- 
„ DR. JENKINS: To which game are you referring 

Morgan S$Pte or -the Colts? 

THE CHAIRMAN: Both. The results of this will 
be published and is presently -- the transcripts are 



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As I think all of you recall, the cost of this 
program, which is not great, was financed through Title 1 
of the Education Act and we hope that the booklet, or 
the bound volume of the transcript, and the additional 
comments will be ready in the relative near future. We 
will send it to every member of the Commission and, of 
course, the primary purpose is to have sufficient copies 
available for the entire membership of the Constitutional 
Convention and its staff. 



g-. This nearly rounds out the program that we have 



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been trying to work out as to supplemental investigations 
of various aspects of our endeavors, so that the Consti- 
tutional Convention, in addition to having before it 
our report, and workbook and the detailed results of our 
studies, will have before them with respect to each of 
the three major branches of Government, and also with 
respect to political subdivisions, completely independent 
and outside investigations. 

As to the Executive Department, they will have, 
of course, the report of the Curlett Commission. The 
initial report will be available in the near future. 
The final reports would, I hope, be available before the 
Convention meets. 

The work which started off as an investigation 
of the General Assembly by the Young Democrats Club and 
then was broadened to include the Young Republicans, and 
then broadened still again by a group which is called 
the Citizens Commission on the Legislature, will have a re- 
port available within the next thirty days. This in no 
sense is a discussion of the Constitutional provisions 
With respect to the General Assembly, but will present 



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the results of detailed testimony by Governors, and 
former Governors, by present and former members of the 
Legislature, and numerous other persons as to the actual 
operations of the Legislature. This will, we think, 
form a very valuable document for the Constitutional Con- 
vention to consider, in connection with the recommenda- 
tions of this Commission as to the Legislative Department. 

The third area that we have hoped -- or the 
fourth area that- we have hoped to have an independent 
study on is still in the offing but I hope will be con- 
cluded, and that is the study of the judicial system of 
Maryland by the Institute of Judicial Administration. 
That is ready to go ahead, provided we can get a foundation 
grant to pay the cost of it . I have had several con- 
ferences recently with the foundation which is very much 
interested in the project and I am hoping that they will 
give us an affirmative answer within the next ten days. 
If so, that project will move ahead. It will take six 
months to complete and, therefore, if we can get clearance 
by the first of the year, it should be available by next 
summer, in time for consideration by members of the Consti- 



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tutional Convention. 

Another matter on which I wish to report to 
the Commission has to do with the very important question 
of election of delegates. As all of you I am sure have 
heard from the comments from your friends, and others, 
and have read in the newspapers, there's an increasing 
awareness of the urgent necessity to work out some solu- 
tion to the problem of a great number of delegates. 

John Brooks and I have, following the suggest- 
ions made at the last meeting, been pursuing the plan of 
meeting with political leaders throughout the State on 
a sort of a two-by-two basis, and I must say that the 
initial response that we have had from these discussions 
has been very heartening. 

I think one of the most interesting things that 
has come out of it is the unanimous feeling of all the 
persons to whom we have talked that the suggestion out- 
lined at the Commission's meeting several months ago that 
we arrange for an advance meeting of the Convention early 
in July, to elect officers, and organize, and set up an or- 
ganization that can appoint committees, and that then we 



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have an orientation session of several days to acquaint 
the new delegates with some of the problems, as I say, 
has met with a universal favorable response. 

Statements have been made to us by everyone 
to whom we have talked that we should anticipate no 
difficulty whatsoever from the Legislature on this point. 
That, of course, remains to be seen because none of us 
know exactly what the reactions of the current Legisla- 
ture will be. 

Nevertheless, in preparation for that kind of 
a session, we have begun to accumulate materials that 
ought to be made available and ought to be explained. 
I mention these at this time, so that any of you that 
have suggestions as to additional things that we ought to 
be assembling now for the benefit of the Convention, could 
pass the suggestions along to us and we would be very 
happy to have it . 

Miss Bishop, I am sure there is a chair here, 

if you will just come in and sit down. 

MISS BISHOP: Thank you, Mr. Eney. 

I 

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sidered are these. VJe have asked the Comptrollo :o 
print an additional number of copies of the Co ller's 
annual report. He is doing this, so that the c 
annual report will be sufficient that V7e can h 
for every member of the Convention and the sc< 
addition, he has gathered together for .us as n 
of reports in the past four or five ye^rs as 
able in hi^ department , so that they can form a 
the library of the Convention. 

We have made the same arrangements W] aspect 
to the budget. The current budget will be prii in 
an additional number of copies, so there will b 
sufficient number so that every delegate will h; : one. 
Now, quite obviously, to hand the great big budg to 
delegates to this Convention, without any explai on, 
would be a completely futile thing to do. So this is 
part of the planning for the orientation session. We 
would hope that Mr. Sleicher, for instance, or s> body 
from the Budget Department, Budget Bureau, would vote 
some time at the orientation session to expl nature 
of the budget, so the delegates, when they co the 



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report of this Commission as to budgetary provisions 
V7ould at least understand the difference between the pro- 
gram budget and the line item budget and have other such 
things in mind . 

Dr. Everstine is trying to gather together for 
us other reports of general departments, and the Budget 
Bureau has agreed to check through every report, or check 
through a list of reports of all departments that are 
currently being.- printed , so that we can decide which of 
these should be a part of the private library of each 
delegate . 

Now, I am quite sure that there are those of 
you with experience in State Government who know of re- 
ports or documents that it would be relatively easy to 
obtain now in sufficient quantity, but would be very 
difficult to obtain later. If there are any such, would 
you please drop me a note, or John a note, so that we 
can make the arrangements now? 

V. T hat we are trying to do, of course, is not to 
deliver a short course in government to the members of 
the Constitutional Convention, the new delegates, but to 



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furnish them with enough copies, plus an explanation 
of copies of those reports, that when they consider the 
provisions that we recommend as to the Executive, the 
Legislative and the Judicial branches of Government, 
provisions as to finance and taxation and so forth, they 
would at least have some comprehension of what it is we 
are talking about. 

This leads into the question of the election 
of delegates generally and, as you know, a number of 
groups have already been organized, and more are being 
organized it seems almost every day, with the idea of ad- 
vocating the election of the best qualified delegates. 
It has become increasingly evident that the problem has 
been and will be to work out some method of coordinating 
the activities of these groups. I think it is extremely 
unlikely that there will not be at "least one group in 
every legislative district of the State organized for this 
purpose, including in the term legislative district, 
counties where they only have one or two delegates. 

Unfortunately, or fortunately, depending on how 
you view it, in some districts there will be more than one 



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such group, and the problem is going to be to coordinate, 
to unify their efforts, so that they don't dilute the 
over-all effort and work at cross purposes. This is a 
real problem. 

In the discussions which we have had with 
political leaders, I have made the statement that I made 
last month to this Commission, that I would not doubt 
that there would be as many as a thousand candidates for 
the position of delegate to the Constitutional Convention. 
The only reaction that I have gotten to that comment, 
from the persons to whom we have talked, is that it is 
too low, that there are apt to be more. 

This has led to the feeling that it would be 
virtually impossible on a State-wide basis to work out 
any kind of a coordinating or steering committee. There 
have been a number of suggestions of trying to work out 
a nominating committee on a State-wide level but after 
discussion, each of these come to the same end, that it 
just didn't seem feasible. 

It does seem feasible, however, that the groups 
organized on a district level could be coordinated by some 



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.' sort of steering committee. 

g I have, following the discussion at the last 

meeting of the Commission, made it abundantly clear that 
the Commission will not formally take any position with 
regard to any delegates to the Convention, and I would 

fi assume that by and large the same would be true of any 
members of the Commissidlv 



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D I do not think that this precludes members of 

o * 

q the Commission from exerting "their efforts in any and 
all districts where necessary to see that a group, in- 
dependent group is organized, or if there are several, 
tq that some effort is made to coordinate and unify these 
13 groups . 

y. Any further suggestions that any of you have on 

this problem would be more than welcome. 

I might say that not a day goes by that John 
and I don't get much more than one or two phone calls on 
1ft this subject 

The status of our report at the moment is this, 
first off, I am very sorry to say to you what I am sure 



p., that all of you have concluded anyhow, and that is that 



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it is going to be impossible for us to have our printed 
report ready to deliver by the convening of the Legis- 
lature on January 18th. 

This disturbs me very much but I have talked 
to members of the Commission and their feeling is the same 
as mine, that it is much more important for us to have a 
report that we can be satisfied is the best we can pro- 
duce, than to meet the earlier deadline. 

We are still under tremendous pressure because 
even if we are to have it printed and distributed by 
February 15th, it means we have got an enormous amount to 
do in a very short time. 

Most of the work by committees is completed but 
not all, and the most important matter yet to be consider- 
ed by the committees is the problem of schedules, or if 
you want to call it effective dates, and I would like to 
ask the chairman of each committee to, with his reporter, 
as soon as possible, and I mean if you can, within the 
next ten days, not a formal meeting of the committee, but 
with your reporter go over your part of the Constitution 
with a fine- tooth comb and decide whether one, all or some 



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parts can go into effect as soon as the Constitution 
is adopted by the people, or a reasonably short time 
thereafter, without any great disruption of existing 
governmental functions or duties and so forth. 

Secondly, whether it is desirable to postpone 
the effective date of a part of the provisions recommend- 
ed, in order to give the Legislature time to pass imple- 
menting legislation; and, third, and perhaps more 
critically, whether some parts -- or the effective date 
of some parts should be extended, in order to not cut off 
the terms of elected officers, or even appointed boards, 
in some instances. 

This undoubtedly presents a serious problem 
in the case of the committee dealing with the Judiciary 
Article, and they are aware of it, and I hope will have 
a report for us very soon. 

It also presents a problem for the committee on 
the Executive Department, and to some extent of the com- 
mittee on the Legislative Department. I do not think that 
the problem is presented in the same degree, at least, 
with respect to the other committee reports, but we haven't 



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make a careful study and I would like each committee 
and reporter to make that kind of study and even if it 
is completely negative. In other words, if your conclu- 
sion is that the part of the Constitution with which you 
are particularly concerned can go into effect immediate- 
ly, if you will just let us know that, it will relieve 
us . 

The final draft, or the final draft of the 
preliminary draft, I should say, of the Constitution is 

on tape. This has posed some problems to us. This is 

■ 

using new equipment that at the moment has slowed us down. 
V7e had not wanted to use this and would have been content 
with the ordinary copies . We could have had it into your 
hands, but as I think you know, we have been using this 
machine to put it on tape with the idea that we can very 
much more quickly arrange to make corrections and re- 
circulate it. In addition, the use of this tape is going 
to permit us to use a computer for purposes of making 
an index which is of tremendous advantage and will be 
time-saving in the long run. If you find some flaws in 
the first draft that comes to you, it is inexperience in 



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i operating the tape. I still don't know how they erase 
a hole. punched in the tape, but they tell me somehow or 

. other they do it . 

4 I think they are all of the matters that I 

t wanted to comment on generally. Is there anything I have 
left out, John? 

7 MR. BROOKS: No, sir. 

8 THE CHAIRMAN: Any general comments or matters 

9 that any member of the Commission wants to bring up? 

10 If not, we will proceed to a consideration of 

11 the eighth report of the Committee on Miscellaneous 

12 Provisions . 

13 You should have with you a copy of the eighth 

14 report dated December 3, 1966. That was distributed at 

15 the last meeting. 

15 DR. JENKINS: Mr. Chairman, I am sorry, I think 
17 there is one item which you did not state. Do you anti- 
IB cipate further meetings of this -- formal meetings of 

19 this Commission, if any? 

20 THE CHAIRMAN: Yes, I am glad you mentioned that 

21 because I did want to mention it 



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2 I do not anticipate the necessity of having 

2 any further meetings of the kind that we have had here- 

„ tofore or such as the present meeting, to consider reports 

^ of committees and drafts. 

r I think that most of what we yet have to do 

r will be handled by correspondence but it will obviously 

ri be quicker to resolve some problems at a meeting. 

I would therefore ask each of you to keep open 
g on your agenda the third Monday in January, the normal 
1Q Commission meecing date. If you would please hold the 

1\ entire morning, afternoon and evening. I think it most 

unlikely that we will have to call you together for that 
■j ^ length of time but we can't tell what problems we may 
TA run into with the detailed work of the Committee on Style 
■jr and other such matters. 

DR. JENKINS: The 16th. 
MR. CASE: The 16th. 

THE CHAIRMAN: I think that's the date. That's 
correct, the 16th. Dr. Bard. 

DR. BARD: Mr. Chairman, if the report is finish- 



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that we will still submit it to Governor Tawes? 

THE CHAIRMAN: This is -- I don't know, to 
answer you frankly. It is one of the problems. We just 
don ' t know . 

If we have our report printed for circulation 
by the middle of February, they tell me I would have to 
have the completed typewritten draft by the first of 
January which obviously is not possible, and I am hoping 
that we can shorten the time by giving the printers a 
part of the material. This increases their job and 
increases ours , but we are not going to be able to have 
one clean typewritten draft of the whole report before 
they start. 

It makes it very important, though, for each 
of the committee chairmen to ride herd on their reporters 
who are presently supposed to be assembling for us and 
re-editing the committee reports, so as to phrase them 
in terms of the Commission's Report, rather than the 
committee's report. 

VJe need this badly, just as quickly as we can 
get it. Mr. Scanlan. 



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MR. SCANLAN: What about the proposed Enabling 
Act. Will that be in shape to be placed before the 
General Assembly early in the next session? 

THE CHAIRMAN: Yes, we think that in principle 
the Enabling Act has been approved by the Commission and 
there is some editorial work to be done on the statute 
itself which I think we can clear by circulation to the 
Commission members, or actually I don't think it requires 
a resubmission to the Commission because all matters of 
principle have been decided. 

We have discussed with the legislative leaders 
of the previous sessions the best method of handling this 
matter and I think tha v t if the procedure which has been 
discussed works out, it will be very good procedure all 
around . 

The Bill would be introduced by the presiding 
officers in each House simultaneously. Now, if the pre- 
vious presiding officers are the new presiding officers, 
this is decided. Now, if we have new presiding officers, 
we don't know what their views will be. 

Also, our present thinking is to have the rules 



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1 of the House and the Senate which normally are presented 

2 at the opening session and adopted on a voice vote with- 
in out change, simply the rules of the preceding Legislature, 
4 will be amended prior to such submission to provide as 
g a standing committee of both Houses a joint committee 
g on the Constitution. The idea being that this joint com- 
rj mittee would carry through all problems concerned with the 
q Constitution from the beginning of the next session until 
g the Constitution is adopted. This would, of course, 

10 enormously facilitate, not only the matter of decisions 

11 on the Enabling Act, and the election of delegates, but 

12 budgetary problems in connection with the Constitution, 

13 and problems of housekeeping arrangements for the Consti- 

14 tution, publicity to be given to the work of the Convention, 

. ' i 

15 and publication of the Constitution, budgetary appropria- 

15 tions for that, and, more importantly, implementation of 

17 the provisions of the Constitution to the extent required 

18 by legislation. 

19 This hasn't been thought through completely, 

20 but the idea is that it might be much quicker, much better 

21 and much easier to have the implementing legislation go 



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through such a joint committee which is then familiar 
with the over-all problems of the new Constitution, 
rather than have it go in as it would in the normal course 
to various other standing committees. 

Now, here again, this is only at the moment 
a matter of initial discussion and, since we don't know 
who the officers of the next Legislature are going to be 
for a certainty, this whole procedure could be canceled, 
but at the moment, this looks like it is it. 

I might add -- your question about that trig- 
gered my recollection on this, that John and I have, 
since the last meeting of the Commission, had a very 
pleasant and successful, I think, meeting with Governor- 
Elect Agnew, have acquainted him with the work of the 
Commission and with what we propose, and what we estimate 
is needed in the budget. He is, as I think all of you 
knew anyhow, intensely interested, and desires to be kept 
fully informed. He is also very much interested in the 
problem with respect to the election of delegates. 

At his request, we are meeting with his budget 
advisors tomorrow to work out the details of the budget. 



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The only difference, I think, with respect to the budget 
that is in any way different from what we talked about 
before, and I may have even mentioned that, is that the 
Budget Bureau suggested that we would have to have a 
substantial amount in the budget for publication of the 
Constitution in the purely formal manner in which session 
laws are published by newspaper advertisement, and in 
addition, by brochure or explanatory pamphlet, or some- 
thing of this sort, so that the total cost of the Con- 
vention would be perhaps several hundred thousand dollars 
more than we anticipated. We have been told it would take 
,g at least that much for printing. 

Now, are there any other questions? Mr. Gentry. 

MR . GENTRY: The one open item of my committee 
is the preamble, and if this is to be the last meeting, 
will that be discussed today or -- 

THE CHAIRMAN: No, I would still like to have 
the members of the Commission have before them an entire 
complete draft of the Constitution tied together as much 
as possible before you decide on the language of the pre- 



p. amble, and I think we can handle that either by mail or 



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at Che next meeting 

In that connection, let me mention to you 
that it has been awfully difficult to try to work out 
an arrangement of the Constitution with the pieces that 
we have, so that in order to get something on paper, we 
have put all together. Undoubtedly, many of you are 
going to say, Well, this is a very awkward arrangement 
in some particulars. If so, call it to our attention. 
We have also in mind that the staff will do some rather, 
and the Committee on Style, some rather elaborate re- 
arrangement. Any further questions? 

One other thing I did want to mention, I don't 
know how many of you saw the special program put on the 
air by Station WJZ at 11:30 on last -- 

MR. BROOKS: Friday. 

THE CHAIRMAN: Yes, December 9th. They had 
their cameras from half past 9 in the morning until 4 
o'clock in the afternoon at the Goucher conference, and I 
wondered how in the name of goodness they would ever make 
anything worthy of a TV broadcast. 

They had a special on right at the conclusion of 



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the news, it was about 11:20, and I think it was un- 
questionably one of the finest pieces of camera reporting 
of a conference of that sort that I have ever seen, and 
I think it is the kind of helpful publicity that the Cora- 
mission is seeking because it made it abundantly clear 
that it was going to be very necessary to elect delegates 
of the highest possible caliber. 

All right, let's move ahead, then, to the con- 
sideration of the eighth report of the Committee on Mis- 
cellaneous Provisions. You have the report from the last 
meeting and you should have before you, passed out today, 
a Xerox copy of a research memorandum prepared by Mr. 
Lasson. Mrs. Bothe. 

MRS. BOTHE: I believe, Mr. Chairman, that we 
have only the provisions of Article XV, Section 11 in 
our eighth report before the Commission today. 

THE CHAIRMAN: That's correct. 

MRS. BOTHE: Starting on page 3 of the report. 

MR. BROOKS: Does anyone need a copy of the re- 
port, the eighth report? 

MRS. BOTHE: Has everybody got the report? 



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Well, our Committee on Miscellaneous Provisions 
has throughout the year and more sessions of this Com- 
mission been recommending deletion of various provisions 
in the current Constitution and have been getting them 
through V7ith very little debate. With this last report 
which is, I believe, also the last formal piece of busi- 
ness before the Commission, we are again follov7ing our 
usual pattern and recommending that the subject matter 
of the particular kind, this time Section 11 of Article 
XV not be included in the new Constitution, but apparent- 
ly it is not quite as simple as some of our other pro- 
posals to the Commission. 

As those who were here at the last meeting re- 
call, and because a number were not here, the matter was 
not pursued then. It came up before the Commission at 
the past meeting and on a motion to defer until all 
members, or most of the members of the Commission were 
able to be present, it comes up today as a special order 
of business . 

Section 11 of Article XV reads: No person who 
is a member of an organization that advocates the over- 



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throw of the Government of the United States or of the 
State of Maryland through force or violence shall be 
eligible to hold any office, be it elective or appoint- 
ive, or any other position of profit or trust in the 
government of, or in the administration of the business 
of this State or of any county, municipality or other 
political subdivision of this State. 

This was an amendment to the Constitution ap- 
proved by the voters by an overwhelming vote in 1948, 
after the General Assembly passed the enabling legislation 
in its session in 1947. 

Following the passage of this amendment, the 
General Assembly appointed a commission known as the Ober 
Commission which drafted implementing legislation which 
now appears in Article 85A of the Code and which makes 
various provisions, in order to be certain that no person 
who holds any office of profit or trust and so forth is 
a subversive. It also places some criminal penalties on 
those who attempt to do so. 

The committee has recommended, and I believe it 
is the unanimous recommendation, the deletion of this 



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section, and in doing so, as Congressman Miller said 
when he went out the door the other day, we are certain- 
ly not recommending that the Government be filled with 
subversives as it was felt by the deletion of this 
section . 

It is of fairly recent origin. Why it was con- 
tained in the Constitution, I don't think we were able 
to ascertain, though we had some considerable research 
done into the background of it, and Lew Noonberg, the 
reporter, is going to tell you a little bit about a 
possible conflict with Article LXXXV-A, in the event that 
it is deleted from the new Constitution. We did not, how- 
ever, discuss why it was, exactly why it was felt neces- 
sary to place the provision in the Constitution. Only 
four States have done so, besides Maryland, and in recom- 
mending the deletion of the section, we do not make any 
recommendation one way or the other with regard to 
legislation such as Article LXXXV-A on subversive actities 

I would be less than frank if, as chairman of 
the committee, I would not admit that I wear another hat 
as well. I am one of counsel in a suit now pending in 



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the Supreme Court which would make the subversive 
Article LXXXV-Awould declare it to be unconstitutional 
itself, but I don't feel that my participation in that 
case has in any way affected or in any significant way 
affected my objectivity with regard to constitutionality. 

We have had absolutely no sentiment on the com- 
mittee favoring this type of provision in the Maryland 
Constitution. 

I think that many of you are aware, after our 
last experience in drafting the Constitution, that this 
is not the kind of provision that a modern Constitution, 
or the one that we have proposed up to this point, would 
contain. , 

Our proposals have dealt with specific areas 
of the legislative, judiciary and executive provisions 
of the Constitution, and this rather stands out as a non- 
secular or sore thrumb, this blanket prohibition against 
mother and God, as it stands. 

We felt, while we are not against the important 
purpose of the provision, that it should not have consti- 
tutional status. Now, there was a possible area of 



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necessity for continuing it in the Constitution. The 
Miscellaneous Provisions Committee in its second report, 
approved by the Commission, dealt with the subject of 
oaths, and the oath prescribed or to be prescribed in 
the new Constitution, as recommended by the Commission, 
will state as well that no other oath, declaration or! 
political test, other than the one in the Constitution, 
which merely will swear allegiance to the State and 
Federal Constitutions, should be prescribed . 

There was a possibility that, without the 
additional constitutional provision which Section 11 of 
Article XV now contains, that an Ober Bill or subversive 
activities law could be unconstitutional under our Maryland 
Constitution, and I had understood that a paper that Mr. 
Lasson prepared was circulated on that subject to the 
Commission before the last meeting. Mr. Eney informs me 
this was not done and suggested that we call upon Mr. 
Noonberg to explain the conflict for the enlightenment 
of the Commission. Will you do that, Lew? 

MR. N00NBEPG: The difficulty that the committee j 
had is in determining whether or not the elimination of 



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Article XV, Section 11, would, by virtue of its elimina- 
tion, render unconstitutional the Ober Law which is 
Article LXXXV-A. 

We point out two problems. First, as to the 
Constitution as it exists today, Article XXXVII of the 
Declaration of Rights provides, among other things, that: 
Nor shall the Legislature prescribe any other oath of 
office than the oath prescribed by this Constitution; 
and then we also have enacted at a later date Article 
XV, Section 11. 

Veil, the problem is that if you eliminate 
Article XV, Section 11, you thereby make the Ober Law 
vulnerable to attack, as being unconstitutional _under 
the Maryland Constitution. 

The question that is now before the Supreme 
Court concerns solely the constitutionality under the 
Federal Constitution of the Ober Bill, so that the issue 
boils down to whether or not the Ober Bill is another 
oath which is prescribed by Article XXXVII and, if it is 
another oath, is it saved by Article XV, Section 11. 

Then, there is really a third problem the com- 



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mittee and now -- and the Commission, rather, has adopted 
Article I, Section 6, which uses the terms: Oath, 
declaration or political test. The third problem, then, 
is if it was constitutional, and when I use the word con- 
stitutional, I mean under the State Constitution, if it 
was constitutional under the present Constitution, does 
the addition of the words, declaration or political test 
render it unconstitutional. 

We asked Mr. Lasson to review this question for 
us, review the question of whether or not the elimination 
of Article XV, Section 11, would affect the constitution- 
ality of the Ober Lav;. The answer is unclear. There 
really is one case in the Court of Appeals of Maryland 
known as Shub versus Simpson which indicates two things. 
First, it indicates that an affidavit is not by its nature 
an oath of office, as contemplated by Article XXXVII. 
It does this really, though -- this is not the holding 
of the case c<nd it is not clear whether it applies across 
the board to all sections of the Ober Law. However, that 
does indicate, in our opinion, that the Ober Law could 
stand without Article XV, Section 11. 



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Secondly, though the Court of Appeals does 
recognize that Article XV, Section 11, and the Ober Law 
were contemporaneous and are interdependent, just how they 
are interdependent the Court doesn't really explain, so 
that we are somewhat in a quandary. 

We spoke with -- both Mr. Las son and myself 
spoke with Bob Murphy, who at the time we spoke with him 
was Attorney General, and who has now, of course, been 
appointed as the Chief Judge of the Intermediate Court of 
Appeals, and Mr. Murphy is quite emphatic -- well, I 
might state that, as a preface, Mr. Murphy is quite con- 
versant with the Ober Law and with Article XV, Section 11. 
He personally has handled litigation in this field for 
the State, and it is his opinion that the Ober Law can 
stand without the necessity of having. Article XV, Section 
11; and it is primarily based upon his opinion, and he 
stated that he was quite willing to be quoted to that 
effect, and I think he has now been quoted by most of the 
newspapers to that effect, that Article -- the Ober Law 
could stand without Article XV, Section 11. 

That, his opinion, plus the Court of Appeals of 



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Maryland's decision in Shub versus Simpson leads our 
committee to the conclusion that the Ober Law could stand 
without Article XV, Section 11, but it is hard to be 
certain in light of the existing law, so we say that 
there is a possibility that the Court of Appeals of Mary- 
land could use the elimination of Article XV, Section 11, 
as a possible basis for holding the Ober Law unconsti- 
tutional in the future, assuming that the Supreme Court 
doesn't throw it out under Federal constitutional grounds. 

Well, if it is valid under the Maryland Law 
as it exists today, the next question is whether or not 
Article XV, Section 11 -- or if it is unconstitutional, 
does Article XV, Section 11, save it? Well, it is not 
clear whether it does or not, but if it is constitutional 
today, there is a possibility that Article XV, Section 11, 
does save it by virtue of its being enacted later than 
Article XXXVII of the Declaration of Rights, and the fact 
that it was enacted contemporaneously with the Ober Law. 

So without any sense of real assurance, we 
suggest that it would be upheld without Article XV, 
Section 11. 



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Additionally, there is the problem that we 
changed the wording slightly in the suggested -- the 
Commission's suggested language that no other oath, 
then we add, declaration or political test; do the terms 
declaration or political test render the Ober Law un- 
constitutional. We feel, to be frank about this, the 
committee did not research this question, but it is ob- 
vious that the use of the terms declaration or political 
test add to the ques tionability of the Ober Lav;, in light 
of this oath provision, so that the committee is -- I 
might add the language which the Commission is suggesting 
is contained in Section 1.07 of the model, and the model 
indicates that forty-three States provide for language 
which states that no other oath, declaration or political 
test shall be required for any public office or employment. 
So, without coming to a firm conclusion, we feel that 
probably the Ober Bill will remain -- the Ober Law will 
remain constitutional but we have no real certainty of it. 

THE CHAIRMAN: Mr. Bond. 

MR. BOND: Mr. Chairman, I am somewhat amazed 
at the great solicitude of the committee for the Ober Law. 



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1 Every change we have made in every constitutional -- 

2 every phrase of the Constitution that we have adopted 

5 changes laws, and yet now I hear a great solicitude over 

4. one law, and I don't understand it. 

g MRS. BOTHE ; I might make one comment there as 

g to our particular committee's assignment. Vie have had 

y a lot of matters come within our purview where legisla- 

8 tion was desirable but where constitutional law was not, 

9 and perhaps we fell into that habit when we made this 

10 recommendation with due concern for the existing legis- 

11 lation. We would obviously prefer not to have to get 

12 into the virtues of antisubversive legislation, such as 

13 the Ober Bill, and I think that the Commission, if 

14 possible, should seek to avoid that as well, despite my 

15 personal feelings. It is to be hoped that the Commission 
15 doesn't have to decide on the rights and wrongs of anti- 

17 subversive legislation, such as the Ober Bill. I think 

18 we all have our personal views pro and con, and perhaps 

19 largely con. 

20 THE CHAIRMAN: Mr. Scanlan. 

21 MR. SCANLAN: May I ask the distinguished chair- 



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lady, the eminent counsel, whether the thrust of the 
attack on the Ober Law in the case now pending before 
the Supreme Court is broad enough that it might cast into 
jeopardy, if you are successful, provisions like the pro- 
posed -- I mean not the proposed -- like Article XI -- 
Article XV, Section 10? My point -- 

THE CHAIFMAN: Section 11. 

MR. SCANLAN: Section 11. My point is, if the 
Supreme Court should knock down the Ober Lav; on the basis 
that it would cast out Section 11, Article XV, it would be 
an exercise of futility for us to recommend it to stay 
in the State Constitution. 

MRS. BOTHE: I think that is one of the argu- 
ments that might be used. However, in all fairness, I 
am sure -- 

MR. SCANLAN: I am not asking a question, I am 
making an argument. 

MRS. BOTHE: I don't think the Supreme Court 
or any Court is going, to say that a State can preclude 
subversives from being employed by the State, so that the 
expression of sentiment contained in Section 11 would be 



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perpetuated no matter how successful we would be in 
overthrowing the Ober Bill and all other laws of this 
nature . 

The Supreme Court has already held that the 
States cannot criminally enforce statutes against sub- 
versive activities as applied to the Federal Government 
in the Nelson case, and insofar as our present Ober Law 
purports to prevent subversion against the Federal Govern- 
ment, it is ineffective and unconstitutional. 

In the Shub case which Lew referred to, the 
Court held that the State could not preclude an individual, 
a State individual from running for Federal office under 
the terms of the Ober Bill, so that in some part it is 
already ineffective. 

Section 11, however , in its expression of a 
view would stand untrammeled, I think, forever. I don't 
believe that the section itself would be unconstitutional, 
by virtue of any decision that the Court makes, it would 
just be ineffective. 

THE CHAIRMAN: Mr. Sykes .. 

MR. SYKES: Can I ask whether the committee is 



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really of the opinion that you just expressed? I would 
particularly like some guidance as to whether or not 
the committee's reporter feels that the language of 
Section 11 of Article XV, as it now reads, is clearly 

unconstitutional under the Federal Constitution. If the 

it J 

language means what it says in/and that the only way Jrou 

can possibly save this is to stand on your head and read 
it to say what it doesn't say. It provides that a per- 
son who is a member of an organization that advocates the 
overthrow of the Government of the United States or the 
State, through force or violence, shall be ineligible 
to hold office. It doesn't say anything about knowledge 
of the purposes. It doesn't say anything about the ex- 
tent of the advocacy, whether it is teaching and academic 
doctrine, or has a present tendency to promote the use of 
violence . 

As I remember the Scales case and the other 
Supreme Court cases, this language of Section 11, if we 
reenact it would be clearly violative of the Federal Con- 
stitution. It would certainly have to be recast, and I 
don't -- that's another question -- but I suggest that if 



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. you reenact Section 11 of Article XV of the Constitution 

2 of Maryland in the light of the present Supreme Court 

decision, then you would be violating any obligation you 

. all have and we have to support the Federal Constitution 

MRS. BOTHE: I guess you are right. This was 
5 

fi exactly the argument used in the Supreme Court. 

MR. CASE: That's the question. 
MPS. BOTHE: In the Gerende case, and soon-to- 



g be Judge Murphy who was representing the State as a mem- 



ber of the Attorney General's staff told the Supreme 
in Court that this wording wouldn't mean what it said because 
no tne implementation of the Constitution and of the Ober 
, , Law was such as to the oath which people are required to 
, . sign j in order to prove their worthiness under this section 
did state and define subversive organization. The Supreme 
Court, in its decision, said, Well, so long as the State 
is actually enforcing its laws in a constitutional manner 
that this will -- we will not prevent the State from hav- 



, Q ing a general provision which is properly carried out. 
j.y 



Now, I agree with you, Mel, but the Courts have 
said that we can do this -- 



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MR. SYKES: Well, Mr. Case asked what the 
question was. Can I just put it very succinctly, the 
question is, Is this the way to write a Constitution? 

THE CHAIRMAN: I don't think that is the question. 
The committee has recommended this provision not be in- 
cluded and no one has moved that it be included or that 
that recommendation be overruled. 

I think the real question is whether the action 
heretofore taken by the Commission in approving the form 
of oath recommended in the early report of the Commission 
which is in turn modeled after the model State Constitution 
in the language that it employs, would prevent the Legis- 
lature, if it thought wise to do so, from enacting any 
kind of meaningful and proper legislation to control sub- 
versives in Government. 

What is the section, Lew, that we already have 
approved, the oath section? 

MR. N00NBERG: The approved section is Article I. , 
Section 6. 

THE CHAIRMAN: Replacement of existing Article I, 
Section 6. 



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1 MR. NOONBERG: Yes, which encompasses Article 

2 XXXVII, also, of the Declaration of Rights, part of it. 

3 THE CHAIRMAN: Now, that contains the language 

4 that no other oath, declaration or political test shall 

5 be required. Can you tell me whether the committee had 

6 anything before it as to the scope of that phrase, other 

7 than the fact that it is in the model State Constitution? 

8 MR. NOONBERG: No, sir, we did not. 

9 THE CHAIRMAN: Is there any view as to whether 

10 the phrase declaration or political test could conceivably 

11 prevent the Legislature from enacting an otherwise proper 

12 and meaningful statute as to subversives employed in State 

13 Government? 

14 MR. NOONBERG: Vie definitely feel that is con- 

15 ceivable. 

16 THE CHAIRMAN: Mr. Scanlan. I think that's 

17 the question that is before us. 

18 MR. SCANLAN: In doing some research for a 

19 case awhile back, on the question of political oaths, I 

20 pledge to support the candidates, principles of the Demo- 

21 cratic Party, I seem to recall encountering a New Jersey 

: 



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case where the precise point was presented. The New 
Jersey Constitution, I believe, had provisions similar 
to the model,. There was some sort of a subversive 
activity law. I didn't pay too much attention to the 
case because it wasn't on the point I was engaged in 
pursuing, but there are cases, for instance, where States' 
statutes have permitted parties to require oath of 
allegiance to the political party, to be binding on the 
man after elected to public office, and that is struck 
down. If my recollection of this New Jersey case is cor- 
rect, there is indeed a problem. At the time, I wasn't 
thinking about it, but -- it might not be New Jersey -- 
but I think it is, and fairly recently. 

THE CHAIRMAN: Mr. Gentry. 

MR. GENTRY: As a member of the committee who 
supports the deletion of Section 11 of Article XV, I 
would like to state my reasoning which is different a_ 
little bit. 

First of all, I firmly and fully support the Ober 
Law, but I think it is perfectly consistent with that 
position to offer the deletion of this section because 



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I don't think it is necessary. 

I feel that the oath which we have voted on 
to retain which says in so many words : I swear to uphold 
and support the Constitution, says exactly and more em- 
phatically what Section 11 says, and it puts the man on 
notice that Section 11 does not require any oath in it- 
self. It depends, for its implementation, on the Ober Law, 

as 

where/the oath which we now have found elective and 

V 

appointive officials to take, does say: I swear to uphold 
and support the Constitution, and with that, I myself felt, 
thought it was stronger, said it once and said it better 
than the inclusion of two sections saying much the same 
thing. 

Further, I also asked, during the deliberations 
of the committee, and stated that I would support the 
deletion of Section 11 only if it were found, in the 
course of the research, that the Ober Law was not de- 
pendent on it for its existence and Mr. Murphy, who has 
acted in these cases, stated that quite emphatically, and 
feeling that way, I say we could delete this. 

THE CHAIRMAN: But that doesn't answer the 



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question, does it, Mr. Gentry, because I assume from 
what Mr. Noonberg said that what Mr. Murphy was expressing 
his opinion on was the present Article XXXVII of the De- 
claration of Rights, rather than what we have proposed? 

MR. GENTRY: Well, I don't feel that the ad- 
dition of these model languages, such as any other 
political test or declaration were necessary, and they 
weren't considered at the time we acted on the oath and, 
therefore, we can go back and change that and just say 
that there shall be only one oath of office and it is 
this, and state it. 

THE CHAIRMAN: I understand that and I think 
that is maybe one of the questions that we will have to 
consider, but I must have misunderstood your other comment 
I thought you were indicating that Mr. Murphy had indi- 
cated that the use of the words declaration or other 
political test, such as we propose, would affect his 
opinion. 

MR. GENTRY: I don't see any magic in those 
words, or any reason for their inclusion. We were not 
considering that at the time we considered this particular 



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deletion. If we want to go back and reconsider that, 
that is another matter that I would subscribe to. 

THE CHAIRMAN: Any further comment? Any other 
questions? Any motions? 

JUDGE ADKINS: I will make a motion. I would 
like to propose that Section 11 be amended and as such 
reinstated j to be amended to read: No person who advocates 
and so forth. With that addition, I move it be included 
in the Constitution. 

MR. HOFF: I second the motion. 

THE CHAIRMAN: Does someone second it? 

MR. HOFF: Seconded. 

THE CHAIRMAN: Any discussion, Judge Adkins? 

JUDGE ADKINS: No, except to say that I think 
that in view of the potential problems that are raised, 
it certainly seems to me it may be unnecessary, but it 
certainly seems to me, it cannot be harmful to provide in 
the Constitution that a person who advocates the over- 
throw of the Government of the United States or of this 
State should not be eligible to hold office. 

DR. BURDETTE: By force or violence. 



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JUDGE ADKINS: By force or violence. I think 
if you remove the qualification that he be a member of 
an organization that advocates, you have in some measure 
eliminated a substantial number of objections to this 
type of approach. If you limit it to the advocacy of 
the individual person, I think then the provision has 
merit in the Constitution. 

THE CHAIRMAN: Mr. Bond. 

MR. BOND: I would just like to ask Judge Ad- 
kins , how do you determine what advocacy consists of 7 ? 
How do you prescribe this selected test to someone who 
wishes to qualify for office? 

JUDGE ADKINS: I would think the Courts would 
have no problem in determining that if it came to a test. 

THE CHAIRMAN: Mr. Gentry. 

MR. GENTRY: I would like to ask Judge Adkins 
a question along this line, that in all of this area, 
we are depending to a large extent upon the personal good 
faith of the particular individual in owning up to what 
he advocates, or sponsors, or what-have-you, and if we 
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Section 11 do that the oath would not do? Could not 
the man -- could the man in good faith take an oath that 
says: I support and swear to uphold the Constitution? 

JUDGE ADKINS: Well, I suppose if you want to 
get philosophical about it, if somebody is advocating 
the overthrow of the Government, then is he necessarily 
in good faith bound by an oath administered by the Govern- 
ment which he is attempting to overthrow? So it doesn't 
seem to me that accomplishes something that you are try- 
ing to do, to simply provide some way to prevent people 
who advocate the overthrow to become public officials 
and hold positions of trust. 

MR. GENTRY: Then either one of two things 
would happen, either prior to his taking the oath he 
would say he declines to take it, in which case he 
couldn't hold the office because that is a requirement 
for the office, or on the other hand, he would take his 
oath and then violate it, in which case he would be sub- 
ject to prosecution for violation of his oath. 

THE CHAIRMAN: Mr. Hoff. 

MR. HOFF: My own position on this is very simple 1 , 



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or perhaps simple-minded. I can't help but feel that 
it will -- that when we are writing a Constitution, it 
is certainly within the scope of, let us say, constitu- 
tional embrace, to put a provision in there that will 
prevent enemies of the Constitution from obtaining of- 
fices from which they could overthrow the Constitution 
and our form of government. I think it is a very simple 
matter and very proper matter to have something of this 
sort in the Constitution. I don't believe that a simple 
lav; may be adequate for the purpose of preventing anti- 
governmental, let us say, subversives, from seeking or 
obtaining office in our State Government. I fear very 
much that the Supreme Court might knock out such a law 
in a hurry, unless it is sustained by some constitutional 
provision . 

THE CHAIRMAN: Mrs. Freedlander. 

MRS. FREEDLANDER: As a member of the committee 
who approved the deletion of this section, I would like 
to suggest that knowing the communication media as they 
exist today, should a person put himself forth to run 
for office in a primary election, undoubtedly he would 



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be exposed, were he a subversive, long before he was 
elected and certainly governors and others do not appoint 
subversives without a thorough review of their records. 
The practical aspects of this, it seems to me, make this 
provision unnecessary. 

THE CHAIRMAN: Mrs. Bo the. 

MRS. BOTHE: I am very astounded that the Chair- 
man of the Committee on the Executive should be the one 
who makes this motion. His committee has been very em- 
phatic in its desires adopted by the Commission to give 
broad latitude to the Chief Executive, and presumably 
to all executive departments for a free hand in appoint- 
ments, not even subject to the will of the Legislature, 
as I recall. 

This provision, I think, is an insult to the 
would-be appointed people. It presumes that they have to 
be constitutionally prevented from appointing subversives. 
I have strong doubts that an executive would choose to 
do so knowingly and, of course, if he did so unknowingly, 
this provision would be of no avail as to those who seek 
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who wish to run for Federal office would not be covered 
by this provision. Those who seek to run for office 
which is covered, this is an insult, in my opinion, to 
the voters of -the State and the whole elective process. 
A person who seeks elective office does so with a campaign 
and on a platform, and to have in our basic law a pro- 
hibition against someone even seeking office whose views 
include advocacy of the overthrow of the Government is 
irimical of the purpose of our Constitution itself. 

I see no useful or theoretical valid purpose 
to be served by this kind of provision. 

THE CHAIRMAN: Mr. Martineau. 

MR. MARTINEAU: I would like some supporter of 
this provision to tell me what -- to answer Mr. Gentry's 
question of what does this add to the Article I, Section 
6 oath. If it adds something, it seems to me there might 
be some merit in it. If it doesn't add anything to it, 
I can't see any point to putting it in. 

THE CHAIRMAN: Any further comment or discussion' 
Mr. Sykes. 

MR. SYKES: I am going to vote against the 



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1 motion for the additional reason that it doesn't even 

g do, I think, V7ha t it is intended to do. 
« The Ober Law is in terms of membership in an 

4. organization. If the Ober Law is going to be unconsti- 
tutional because of something else we have done under 

g ( the Constitution, it is not going to be saved by a con- 

7 stitutional provision that deals only with the political 

q position of an individual. 

g In addition, I think that if anybody can take 

10 the oath, provided in Article I, Section 6, and still 

H be a subversive, he is not going to be stopped to any ex- 

12 tent by the additional oath that is provided for in the 

n^ proposed Constitution. 

14 THE CHAIRMAN: Dr. Michener. 

15 DR. MICHENER: I would just like to speak to 
-.g one point of the question that was raised before as to 
••« what constitutes advocacy, and the answer was that this 

will be determined by the Courts, and this sort of 

ig frightens me in some way from experience with my own 

20 family. 
2i As I mentioned before, my family has been 



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Quaker since the time of William Penn, and during World 
War II a very close relative of mine was put in prison 
with a fifteen-year sentence for refusing to register 
for the draft, and the Judge in Court, when he pronounced 
sentence was saying that the young man was refusing, or 
was trying to overturn the Government of the United States 
and it seems to me that this can be interpreted in those 
terms . 

THE CHAIRMAN: Any further comment? Mr. Gentry. 

MR. GENTRY: Speaking against the motion, I 
would just like to point out that I think the consti- 
tutional drafters tend to be swayed too much by the times 
in which they live and go too far to correct some parti- 
cular thing. If we look back to 1776, when the Declara- 
tion of Rights in our present Constitution was written, 
we see that, provided in Article I, that all persons 
have the inalienable right to alter, reform or abolish 
their form of government in such manner as they may deem 
expedient. Further, in Article VI they wrote that the 
people have the -- may, and of right ought to reform the 
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violence against arbitrary power and oppression is 
absurd . 

Nov7, these are the things that were thought of 
at that time because the people were moved by the revo- 
lutionary spirit of 1776, and what we have in the Con- 
stitution today and what we are talking about was cer- 
tainly and obviously moved by the hysteria which surround- 
ed the McCarthy era, at the time it was written. I think 
it went too far and I think now is the time we ought 
to back off to a position of clear understanding and 
write a Constitution which all people can live with. 

THE CHAIRMAN: Any further discussion? Dr. 
Burdette . 

DR. BURDETTE: I do want to associate myself 
with Mr. Sykes ' point which is leveled against the 
language, a member of an organization, because of the 
difficulty in identifying whether the person knows any- 
thing about the organization. I should like to ask a 
question, Mr. Chairman, which would enlighten me a bit. 

Now, as I understand it, we have, through some 
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oath, test or declaration; I am not sure where the 
adjective political comes in, whether it goes just to 
declaration or goes also to test. 

THE CHAIRMAN: Test. 

DR. BURDETTE: It goes only to test? 

THE CHAIRMAN: Oath, declaration or political 
test. 

DR. BURDETTE: Now, my question is raised on 
the point as to whether or not that language may need 
some strengthening to permit an executive, in making an 
appointment, to make some inquiry about the views of in- 
dividuals who are appointed. Now, this, of course, is 
a very delicate matter, but still we say that would come 
out in a campaign. How does it come out in the executive 
appointment? I am really raising the question as to 
whether we need now to strengthen this problem, as Judge 
Adkins may have attempted to strengthen this point, or 
whether we need, as the Chairman has raised the question, 
to examine the implications of political tests. 

THE CHAIRMAN: I would think that what you say 
is true. That's not the question immediately before us, 



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but I too share the concern that by the addition of the 
words declaration or political test in the substitute 
for Article I, Section 6, we may perhaps have gone too 
far and I think we can discuss that after we conclude 
the discussion of this motion. Mr. Case. 

MR. CASE: Mr. Chairman, I really haven't any 
brief with this section one way or the other because I 
was tweed le-dum, tweedle-dee, but in answer to Mr. Mar- 
tineau's question and some others, as to what this 
section might do that is not accomplished by Article I, 
Section 6, I think the answer -- I think it does do some- 
thing, and I think the answer to it probably lies in 
the language: Office of profit or trust which is used 
in Article I, Section 6, and in the language: Or any 
other position of profit or trust, used in Section 15 -- 
Section 11 of Article XV. Now, the difference is simply 
this, the words: Office of profit or trust, have taken 
on a rather definitive meaning, although it is somewhat 
elusive at times to determine under the decisions of the 
Court of Appeals, but generally speaking, it means some- 
body who exercises a portion of the State's sovereignty 



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in a broad sense. Position, on the other hand, has an 
entirely different meaning and does not embrace this 
broad scope, so that it would be possible, for example, 
for a man to be appointed to a posit ion of office and 
still not have to take an oath. A good example that 
comes readily to mind would be the Chief Examiner of the 
State Insurance Department. He undoubtedly has a position 
of trust because under his guidance are made the various 
examinations of companies doing business in this State, 
and upon his recommendations, many many business judgments 
have to be made which are vital to the persons concerned. 
He doesn't take an oath. 

I would take it that if Article XV, Section 11 
were in the law, and if it were found out that he was 
in fact a member of an organization that was subversive, 
as this term is used, he could be summarily fired because 
I would think this would probably be interpreted as being 
self -executed . He would have gotten in. He wouldn't 
have violated any oath because he wouldn't have taken any 
oath. He would be there, and if this section weren't in 
the law, I would guess that there would have to be some 



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administrative procedures bearing on cause for his 
dismissal. Whether that would or wouldn't prevail, I 
don't know, but I would think in these types of positions 
in the State Government, Article XV, Section 11, would 
add some thrust. 

THE CHAIRMAN: Any further discussion? Mr. 
Martineau. 

MR. MARTINEAU: I agree that it probably goes 
to something other than office, but shouldn't the Con- 
stitution only be concerned with office and leave it up 
to the Legislature to impose this sort of penalty with 
respect to position? 

My own feeling would be that the Legislature 
could clearly do this with respect to any position. 

MR. CASE: You are not convincing me that the 
section is not tweedle-dum or tweedle-dee . I am merely 
trying to say what I think the answer to your question is 

THE CHAIRMAN: I think we ought to avoid the 
same person speaking any more. I think most people have 
spoken. If someone who has already spoken still wants to 
make a point that he feels important, go ahead. 



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1 vMRS . BOTHE: I just want to make one point. 

2 THE CHAIRMAN: Mrs. Bothe. 

MRS. BOTHE: That came up in the committee's 

deliberations which hasn't been made and that pertains 
r to the prohibition contained here on the employment 
r by political subdivisions, including counties and munici- 
palities, of subversive individuals, and I would call to 
8 mind that our whole approach has been to allow the 
c; political subdivisions autonomy in making their own 

10 selections of people to represent them, and any restrict- 

11 ions on the employment of them that would be initiated 

12 within the political subdivisions, as we propose the new 

13 Constitution, that this is an area with which the State 

14 Constitution in no respect should tamper by way of their 

15 personnel or representatives. 

16 THE CHAIRMAN: Mr. Miller. 

17 MR. MILLER: Mr. Chairman, this is, of course, 
an emotional type thing and, as I said, when leaving the 

] other day, I am against Communism, but it seems to me if 
: we are trying to keep our Constitution as small and as 
: firm as we can make it, that any additional language 



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just gives the Court something more to mull over. 

In my,, view, my understanding of subversive, 
the kind of subversive I am disturbed about, wouldn't 
care about what we put in as a matter of oath, if they 
could accomplish their means. The oath doesn't mean 
anything to a real subversive and it seems to me that the 
shorter we make this Cons titituion , without going on 
record as favoring leniency for those who want to over- 
threw our Government by force, the less we say about it, 
the better. 

THE CHAIRMAN: Any further discussion? 

I wanted to comment only on one thing and that 
is the use of the word, advocates. I was involved in a 
case a few years ago where the question at issue was 
whether or not an employer, a large employer, had acted 
properly in discharging persons who were members of the 
Communist Party. This issue came up and it was pointed 
out in the course of the litigation through the Federal 
Courts that the only practical way, in many instances, 
to determine one's advocacy of overthrow of the Government 
by force and violence was by membership in an organiza- 



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tion. That, with the exception of a relatively few 
persons, members of such parties, they did not go around 
advocating this openly in a manner that you could prove. 
That poses one problem. 

I must confess that I am somewhat disturbed 
about the inclusion of the language from the model Con- 
stitution in our form of oath, although I note that the 
model Constitution is apparently intended to be much 
broader because it says: No oath, declaration or political 
test shall be required for any public office or employment. 
So that it would cover anyone else. 

Ours, I take it, is limited entirely to persons 
who are elected or appointed to offices of profit. 

Are you ready for the question? Judge Adkins , 
do you want to close? 

JUDGE ADKINS: No, I will rest. I am prepared 
to vote . 

THE CHAIRMAN: The question arises on the motion 
to include in the Constitution the provision similar 
to present Section 11 of Article XV, except that the 
first three lines shall read: No person who advocates . 



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the overthrow of the Government of the United States 
or the State of Maryland, through force and violence 
and so forth. A vote Aye is a vote for including such 
a provision in the Constitution and a vote Nay is not 
to do so. 

All those in favor please signify by a show of 
hands . 

MR. BROOKS: Seven. 

THE CHAIRMAN: Contrary. 

MR. BROOKS: Fifteen. 

THE CHAIRMAN: The motion is lost seven to 
fifteen . 

Nov;, in the absence of another motion, the 
recommendation of the committee would stand, namely that 
the section be deleted. 

Is there any further motion with respect to this 
section? Is there any motion with respect to possible 
amendment of Section 6 of Article I? Mr. Miller. 

MR. MILLER: If it would be in order, I would 
move a reconsideration of the provision which we have 
already adopted from the model Constitution and move with 



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the idea that we might expunge that business about 
declaration, or affirmation being unconstitutional. 

THE CHAIRMAN: Is there a second? 

MR. GENTRY: Seconded. 

THE CHAIRMAN: The motion goes before you with- 
out debate. 

The motion is to reconsider the vote by which 
the Commission heretofore approved Section 6, of Article 
I, as contained in the second report of the Committee on 
Miscellaneous Provisions. Those in favor of such re- 
consideration signify by saying Aye. Contrary, No. The 
ayes seem to have it, the ayes have it. The section 
is before you for a reconsideration. Mr. Sykes . 

MR. SYKES: Mr. Chairman, I would move that we 
eliminate the word declaration and I would like to focus 
on declaration before we take up the other problem be- 
cause it is a separate problem. 

THE CHAIRMAN: The other problem being? 

MR. SYKES: The other problem being political 



test . 



THE CHAIRMAN: All right 



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MR. SYKES : The reason for the motion is that 
the word declaration can create a lot of mischief in 
connection with existing election practices. 

The Legislature presently requires a certifi- 
cate of eligibility on the part of prospective candidates 
for office, and they have to certify to their residence, 
and their compliance with the other requirements, their 
age and so on. 

Now, if you say that no declaration other than 
the oath of office is involved, you may under-cut the 
constitutional justification which the Court of Appeals • 
has now -- now uses for the procedure for certificates 
of eligibility. I think that there is no intention to go 
that far, and that it, the provision can only cause 
trouble, and the word declaration clearly goes further 
than any ought to go. 

THE CHAIRMAN: Is there a second to the motion? 

MR. SCANLAN: I second that motion. 

THE CHAIRMAN: Any further discussion? 

MR. MARTLNEAU: A question. 

THE CHAIRMAN: Mr. Martineau. 



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1 MR. MARTINEAU: Wouldn't that same apply, Mr. 

2 Sykes , to the question as to expenditures and things 

3 like that, as far as filing statements by campaign 

4 treasurers, and the eligibility for a man to hold public 

5 office, if these are not filed? 

6 MR. SYKES: There is a little bit of difference, 

7 as I see it, between a man who doesn't comply with the 

8 Corrupt Practices Act after the election and a man vzho 

9 can't get on the ballot unless he certifies to the re- 

10 quirements of the law with regard to his eligibility. 

11 I think it is much more like a declaration, that is the 

12 problem is much more severe and much different in kind, 

13 it seems to me, in the first instance, than it is in the 

14 second . 

15 THE CHAIRMAN: Mrs. Bothe. 

16 MRS. BOTHE: I would just like to point out 

17 that the model which proposes the language which this 

18 Commission previously adopted, that is that the inclusion 

19 of the word declaration along with oath and political 

20 test, points out that forty-three States use that lan- 

21 guage . Maryland seems to have previously been unique 



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in restricting its language to oaths. 

Now, I assume that of those forty-three States 
a great number of them require candidates for office 
to file declarations or some other evidence that they 
are fit persons to hold the office, and I would be some- 
what reluctant to alter the language on the strength of 
Mr. Sykes' arguments, and I can appreciate the difficulty 
because certainly I wouldn't subscribe to the inability 
of the State to obtain declarations of residency, et 
cetera, from candidates for office, but 1 would question, 
in view of the predominance of these words in almost 
all of the States of the Nation, that the result would 
be as he states . 

If the Commission isn't determined upon making 
a decision here, I suppose the committee could go into 
it further because, frankly, we just came upon this 
problem today and we don't actually know the effect of 
the inclusion or deletion of the word declaration. 

THE CHAIRMAN: Any further discussion? Are 
you ready for the question? 

The question arises on the motion to amend 



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Section 6 of Article I by deleting from the last sentence 


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the word, declaration. A vote Aye is a vote in favor 


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of the deletion. A vote No leaves the sentence as it 


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stands . 


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All those in favor please signify by a shov7 of 


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hands . 


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MR. BROOKS: Twenty. 


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THE CHAIRMAN: Contrary. 


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MR. BROOKS: Two. 


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THE CHAIRMAN: The motion is carried twenty to 


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two . 


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Any further discussion with respect to Section 


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6 of Article I? 


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The last sentence as now corrected would read: 


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No oath or political test shall be required, and I take 


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it, read in the context of the whole section, this is 


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limited to an office of profit or trust, appointive or 


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elective . 


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Any further discussion? Professor Burdette. 


20 


DR. BURDETTE: I presently understand a political 


21 


test to mean an inquiry about one's views within a 


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constitutional framework. I think it may go, however, 
to such a point as Mr. Scanlan raised, but I would like 
to call the attention of the Commission -- at least my 
mind runs to the thought that these words may have a 
broader and broader interpretation under Court action 
in the years ahead. While I certainly subscribe to the 
view that we should not have a test which would exclude 
a Quaker, or a person of the Jewish faith, or matters of 
this sort, I am not sure that I want to exclude all tests, 
if a Court should decide that inquiring whether or not 
that a person believing in the Constitution is a test. 
I would like to raise that for discussion among the law- 
yers . 

THE CHAIRMAN: Any discussion? Mr. Scanlan. 

MR. SCANLAN: I would like the legislative 
history of this Commission to show, at least as far as 
my vote is concerned, that I don't regard the prohibition 
against political tests to interfere with a political 
test for a primary candidate in a primary. 

I have had a recent bitter experience about 
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how much confusion exists, and there is a distinct 
possibility the Courts will expand the political doctrine 
of tests. There is no question about it. 

I want the record to show I am for this pro- 
vision. I hope some Court in the future doesn't construe 
it to forbid a requirement that a candidate in the Demo- 
cratic Party, for example, could not be required to take 
an oath as a condition of participating in the primary 
as a candidate, that he supports the principles of the 
Democratic Party and will support its candidates in 
the general election. 

THE CHAIPvMAN: Mr. Kartineau. 

MR. MARTINEAU: I would hope that would not 
go on the record as being the sentiments of this Com- 
mission unless they were -- it is adopted as such. 

MR. SCANLAN: They were my sentiments, Robert. 

THE CHAIRMAN: Any further discussion or com- 
ment? 

MR. MILES: Express me as concurring with Mr. 
Scanlan's sentiments. 

MR. BOMD: Me, also. 



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THE CHAIRMAN: Mr. Bond, I can't hear you. 

MR. BOND: I also concur. 

DR. TEMPLETON: May I ask what are Mr. Scan- 
lan's sentiments? He says he is in favor of the retention 
of the provision -- 

MR. SCANLAN: I am concerned that Courts in the 
future might seize upon the phrase, political test, to 
outlaw traditional practices of requiring declarations 
of party loyalty. Nov;, we don't have much of that in 
Maryland, but we have had some. There might come a day 
when we want to protect party integrity a bit more than 
we have recently. I would hate to see legitimate efforts 
in that regard barred by a Court carrying the interpreta- 
tion of political test to the Nth degree. 

THE CHAIRMAN: I take it that would also be 
pertinent with respect to a statute which we already have 
in Maryland which is only Democrats can run in a Demo- 
cratic primary, and only Republicans in a Republican pri- 
mary, and one who is an unsuccessful candidate in either 
cannot be an independent candidate. 

MR. SCANLAN: Precisely. 



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THE CHAIRMAN: You are making the statement 
you personally do not believe the provisions of the 
last sentence, that no political test shall be required, 
would prevent any such legislation? 

MR. SCANLAN: I should hope not. 

MR. JENKINS: I don't know the import of this 
discussion except for history. I would like to say I 
do not agree with Mr. Scanlan's view and I hope it will 
not be a view of this Commission that if you are going 
to run for office that you must then pledge to support 
every fellow candidate of your political party. 

MR. MILLER: Off the record. 

(Discussion off the record followed.) 

THE CHAIRMAN: Any further comment. Any fur- 
ther discussion of the second report of the Committee on 
Miscellaneous Provisions? Mrs. Bothe, anything further. 

MRS. BOTHE: No, nothing further. 

THE CHAIRMAN: That concludes the stated busi- 
ness of the afternoon. 

The next business is the photograph. 

(Thereupon the Commission adjourned at 3:55 p.m.) 



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